As
filed with the Securities and Exchange Commission on November 2, 2023
Registration
No. 333-275137
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT NO.
1
TO
FORM
S-1
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
SINTX
Technologies, Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
3841 |
|
84-1375299 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(Primary
Standard Industrial
Classification
Code Number) |
|
(I.R.S.
Employer
Identification
Number) |
1885
West 2100 South
Salt
Lake City, UT, 84119
(801)
839-3500
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
B.
Sonny Bal, MD
President
and Chief Executive Officer
SINTX
Technologies, Inc.
1885
West 2100 South
Salt
Lake City, UT, 84119
(801)
839-3500
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copies
to:
David
F. Marx
Daniel
P. Lyman
Dorsey
& Whitney LLP
111
South Main Street, Suite 2100
Salt
Lake City, Utah 84111 |
|
Barry
I. Grossman
Sarah
E. Williams
Matthew
Bernstein
Ellenoff
Grossman & Schole LLP
1345
Avenue of the Americas, 11th Floor
New
York, NY 10105 |
Approximate
date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
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|
Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
|
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|
Emerging
growth company |
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Act or until the registration statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting
an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
PRELIMINARY
PROSPECTUS, SUBJECT TO COMPLETION, DATED NOVEMBER 2, 2023
SINTX
TECHNOLOGIES, INC.
Up
to 11,103,708 Units, Each Unit Consisting of One Share of Common Stock or One Pre-Funded Warrant and One Class E Warrant to Purchase
One Share of Common Stock
444,148
Placement Agent Warrants to Purchase an Aggregate
of Up To 444,148 Shares of Common Stock
Up
to 22,651,564 Shares of Common Stock Issuable upon the Exercise of the Pre-Funded Warrants, Class E Warrants, and Placement Agent
Warrants
We
are offering on a best-efforts basis up to 11,103,708 units (the “Units”), each consisting of one share of common
stock and one Class E Warrant to purchase one share of common stock (the “Class E Warrants”), at an assumed public offering
price of $0.4503 per Unit, equal to the closing price of our common stock on the Nasdaq Capital Market, or Nasdaq, on November
1, 2023.
Each
Class E Warrant will be immediately exercisable for one share of common stock at an exercise price of $
per share (not less than 100% and not more than 120% of the public offering price of each Unit sold in this offering) and expire five
years after the issuance date.
We
are also offering to each purchaser of Units that would otherwise result in the purchaser’s beneficial ownership exceeding 4.99%
of our outstanding shares of common stock immediately following the consummation of this offering the opportunity to purchase Units consisting
of one pre-funded warrant (in lieu of one share of common stock) and one Class E Warrant. A holder of pre-funded warrants will not have
the right to exercise any portion of its pre-funded warrants if the holder, together with its affiliates, would beneficially own in excess
of 4.99% (or, at the election of the holder, such limit may be increased to up to 9.99%) of the number of shares of common stock outstanding
immediately after giving effect to such exercise. Each pre-funded warrant will be exercisable for one share of common stock. The purchase
price of each Unit including a pre-funded warrant will be equal to the price per Unit including one share of common stock, minus $0.0001,
and the remaining exercise price of each pre-funded warrant will equal $0.0001 per share. The pre-funded warrants will be immediately
exercisable (subject to the beneficial ownership cap) and may be exercised at any time until all of the pre-funded warrants are exercised
in full. For each Unit including a pre-funded warrant we sell (without regard to any limitation on exercise set forth therein), the number
of Units including a share of common stock we are offering will be decreased on a one-for-one basis. The shares of common stock and pre-funded
warrants, if any, can each be purchased in this offering only with the accompanying Class E Warrants as part of a Unit, but the components
of the Units will immediately separate upon issuance. See “Description of Securities” in this prospectus for more information.
We
are also registering the shares of common stock issuable from time to time upon the exercise of the Class E Warrants and pre-funded warrants
included in the Units offered hereby. We are also registering the shares of common stock issuable from time to time upon the exercise
of the placement agent’s warrants.
Our
common stock is listed on the Nasdaq Capital Market, or Nasdaq, under the symbol “SINT.” On November 1, 2023, the
last reported sale price of our common stock was $0.4503 per share. There is no established public trading market for the Class
E Warrants or the pre-funded warrants. We do not intend to apply for listing of the Class E Warrants or pre-funded warrants on any securities
exchange or recognized trading system. Without an active trading market, the liquidity of the Class
E Warrants and pre-funded warrants will be limited.
The
public offering price for the Units in this offering will be determined at the time of pricing, and may be at a discount to the then
current market price. Therefore, the assumed combined public offering price used throughout this prospectus may not be indicative of
the final offering price. The final public offering price will be determined through negotiation between us and the investors based upon
a number of factors, including our history and our prospects, the industry in which we operate, our past and present operating results,
the previous experience of our executive officers and the general condition of the securities markets at the time of this offering.
The
Units will be offered at a fixed price and are expected to be issued in a single closing. We expect this offering to be completed not
later than two business days following the commencement of this offering and we will deliver all securities to be issued in connection
with this offering delivery versus payment/receipt versus payment upon receipt of investor funds received by us. Accordingly, neither
we nor the placement agent have made any arrangements to place investor funds in an escrow account or trust account since the placement
agent will not receive investor funds in connection with the sale of the securities offered hereunder.
We
have engaged Maxim Group LLC as our exclusive placement agent (“Maxim” or the “placement agent”) to use its reasonable
best efforts to solicit offers to purchase our securities in this offering. The placement agent is not purchasing or selling any of the
securities we are offering and is not required to arrange for the purchase or sale of any specific number or dollar amount of the securities.
Because there is no minimum offering amount required as a condition to closing in this offering the actual public offering amount, placement
agent’s fee, and proceeds to us, if any, are not presently determinable and may be substantially less than the total maximum offering
amounts set forth above and throughout this prospectus. We have agreed to pay the placement agent the placement agent fees set forth
in the table below. See “Plan of Distribution” in this prospectus for more information.
|
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Per
Unit |
|
|
Total(2) |
|
Public
Offering Price |
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$ |
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|
$ |
|
|
Placement
Agent fees(1) |
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$ |
|
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$ |
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Proceeds,
before expenses, to us |
|
$ |
|
|
|
$ |
|
|
(1) |
In
connection with this Offering, we have agreed to pay to Maxim as placement agent a cash fee equal to 7% of the gross proceeds received
by us in the Offering. We have also agreed to provide Maxim for all expenses related to the Offering including up to $100,000 for
reimbursement of legal expenses in connection with its engagement as placement agent and to grant Maxim warrants to purchase a number
of shares of common stock equal to 4% of the total number of Units being sold in the Offering. See “Plan of Distribution.” |
(2) |
Assumes
no pre-funded warrants are issued and all Units issued in the offering include common stock. |
The
above summary of offering proceeds to us does not give effect to any exercise of the Class E Warrants being issued in this offering.
Investing
in our securities involves a high degree of risk. See the section entitled “Risk Factors” beginning on page 7 of the
prospectus. You should carefully consider these risk factors, as well as the information contained in this prospectus, before you invest.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
Maxim
Group LLC
The
date of this prospectus is , 2023
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
The
registration statement of which this prospectus forms a part that we have filed with the Securities and Exchange Commission, or SEC,
includes exhibits that provide more detail of the matters discussed in this prospectus. You should read this prospectus and the related
exhibits filed with the SEC before making your investment decision.
You
should rely only on the information provided in this prospectus or in a prospectus supplement or any free writing prospectuses or amendments
thereto. Neither we nor the placement agent have authorized anyone else to provide you with different information. We do not, and the
placement agent and its affiliates do not, take any responsibility for, and can provide no assurance as to the reliability of, any information
that others may provide to you. If anyone provides you with different or inconsistent information, you should not rely on it. You should
assume that the information in this prospectus is accurate only as of the date hereof, regardless of the time of delivery of this prospectus
or any sale of securities. Our business, financial condition, results of operations and prospects may have changed since that date.
We
are not, and the placement agent is not, offering to sell or seeking offers to purchase these securities in any jurisdiction where the
offer or sale is not permitted. We and the placement agent have not done anything that would permit this offering or possession or distribution
of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the
United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the
offering of the securities as to distribution of the prospectus outside of the United States.
Unless
the context otherwise requires, references in this prospectus to “SINTX,” “the Company,” “we,” “us”
and “our” refer to SINTX Technologies, Inc. and our subsidiaries. Solely for convenience, trademarks and tradenames referred
to in this prospectus may appear without the ® or ™ symbols, but such references are not intended to indicate in any way that
we will not assert, to the fullest extent under applicable law, our rights, or that the applicable owner will not assert its rights,
to these trademarks and tradenames.
PROSPECTUS
SUMMARY
This
summary contains basic information about us and this offering. Because it is a summary, it does not contain all of the information that
you should consider before investing. Before you decide to invest in our Units, you should read this entire prospectus carefully, including
the section entitled “Risk Factors” and any information incorporated by reference herein.
Company
Overview
We
are a 27-year-old advanced ceramics company formed in December 1996, focused on providing solutions in a variety of biomedical, technical,
and antipathogenic applications. We have grown from focusing primarily on the research, development and commercialization of medical
devices manufactured with silicon nitride to becoming an advanced ceramics company engaged in diverse fields, including biomedical, technical
(including aerospace and armor) and antipathogenic applications. This diversification enables us to focus on our core competencies which
are the manufacturing, research, and development of products comprised from advanced ceramic materials for external partners. We seek
to connect with new customers, partners and manufacturers to help them realize the goal of leveraging our expertise in advanced ceramics
to create new, innovative products across these sectors.
SINTX
Core Business
Biomedical
Applications: Since our inception, we have been focused on medical grade silicon nitride. SINTX silicon nitride products are biocompatible,
bioactive, antipathogenic, and have shown superb bone affinity. Spinal implants made from SINTX silicon nitride have been successfully
implanted in humans since 2008 in the US, Europe, Brazil, and Taiwan. This established use, along with its inherent resistance to bacterial
adhesion and bone affinity - means that it may also be suitable in other fusion device applications such as arthroplasty implants, foot
wedges, and dental implants. Bacterial infection of any biomaterial implants is always a concern. SINTX silicon nitride is inherently
resistant to bacterial colonization and biofilm formation, making it antibacterial. SINTX silicon nitride products can be polished to
a smooth and wear-resistant surface for articulating applications, such as bearings for hip and knee replacements.
We
believe that silicon nitride has a superb combination of properties that make it suited for long-term human implantation. Other biomaterials
are based on bone grafts, metal alloys, and polymers- all of which have well-known practical limitations and disadvantages. In contrast,
silicon nitride has a legacy of success in the most demanding and extreme industrial environments. As a human implant material, silicon
nitride offers bone ingrowth, resistance to bacterial and viral infection, ease of diagnostic imaging, resistance to corrosion, and superior
strength and fracture resistance, among other advantages, all of which claims are validated in our large and growing inventory of peer-reviewed,
published literature reports. We believe that our versatile silicon nitride manufacturing expertise positions us favorably to introduce
new and innovative devices in the medical and non-medical fields.
In
June 2022, we acquired TA&T, a nearly 40-year-old business with a mission to transition advanced materials and process technologies
from a laboratory environment to commercial products and services. TA&T has supplied ceramics for use in several biomedical applications.
These products were made via 3D printing and include components for surgical instruments as well as conceptual and prototype dental implants.
Technical
Applications: It is our belief that our silicon nitride has the best combination of mechanical,
thermal, and electrical properties of any technical ceramic material. It is a high-performance technical ceramic with high strength,
toughness, and hardness, and is extremely resistant to thermal shock and impact. It is also an electrically insulating ceramic material.
Typically, it is used in applications where high load-bearing capacity, thermal stability, and wear resistance are required. Our AS9100D
certification and ITAR registration have facilitated entry into the aerospace portion of this market.
We
entered the ceramic armor market through the purchase of assets from B4C, LLC and a technology partnership with Precision Ceramics USA.
We intend to develop and manufacture high-performance ceramics for personnel, aircraft, and vehicle armor including a 100% Boron Carbide
material for ultimate lightweight performance in ballistic applications, and a composite material made of Boron Carbide and Silicon Carbide
for exceptional multi-hit performance against ballistic threats. We have signed a 10-year lease for a building near our headquarters
in Salt Lake City, UT that houses development and manufacturing activities for SINTX Armor.
TA&T’s
primary area of expertise is material processing and fabrication know-how for a broad spectrum of monolithic ceramic, ceramic composite,
and coating materials. Primary technologies include Additive Manufacturing (3D Printing) of ceramics and metals, low-cost fabrication
of fiber reinforced ceramic matrix composites (CMCs) and refractory chemical vapor deposited (CVD) coatings, transparent ceramics for
ballistic armor and optical applications, and magnetron sputtered (PVD) coatings for lubrication, wear resistance and environmental barrier
coatings for CMCs. TA&T also provides a host of services that include 3D printing, PVD-CVD coatings, material processing-CMCs, CIP,
PS, HP, HIP, and material characterization for powders and finished parts-TGA/DSC, PSD. SA, Dilatometry, UV-VIS and FTIR transmission,
haze and clarity.
Antipathogenic
Applications: Today, there is a global need to improve protection against pathogens in everyday life. SINTX believes that by incorporating
its unique composition of silicon nitride antipathogenic powder into products such as face masks, filters, and wound care devices, it
is possible to manufacture surfaces that inactivate pathogens, thereby limiting the spread of infection and disease. The discovery in
2020 that SINTX silicon nitride inactivates SARS-CoV-2, the virus which causes the disease COVID-19, has opened new markets and applications
for our material and we have focused many of our resources on these opportunities.
We
presently manufacture advanced ceramic powders and components in our manufacturing facilities based in Salt Lake City, Utah.
Our
Strategy
Our
goal is to become a leading advanced ceramics company. Key elements of our strategy to achieve this goal are the following:
● |
Develop
new products with anti-pathogenic properties, including inactivation of the SARS-CoV-2 virus, utilizing our silicon nitride technology.
We have conducted multiple tests for over 10 years which have identified and verified the antipathogenic properties of our silicon
nitride powders, fully dense components, and silicon nitride-containing composites. Our research has explored the fundamental mechanisms
responsible for these antipathogenic properties with the objective of developing commercial products and revenue from them. We have
several partnerships exploring opportunities in face masks, filters, wound care, and coatings. |
|
|
● |
Develop
additional commercial opportunities outside of the medical device market. We have pursued the development of non-medical uses
for our silicon nitride since selling the retail spine business in 2018. In 2019, we became ITAR-registered and obtained AS9100D
certification of our quality management system. We have hired experienced business development employees to identify new markets
and applications for our materials and develop commercial relationships. We made the first shipments of non-medical products in our
history in 2020, and several of these have transitioned from prototype to regular production orders. We expect the launch of SINTX
Armor may generate revenue from new products. The acquisition of TA&T brings revenue from multiple markets that we have previously
not participated in. |
|
|
● |
Develop
new silicon nitride manufacturing technologies. Our current manufacturing process has allowed us to successfully produce spinal
implants for over 10 years. Over 40,000 of our spinal implants manufactured with silicon nitride have been implanted into patients,
with an excellent safety record. We have made advancements in our processes – including the purchase of new manufacturing
equipment – which we have leveraged to develop new porous and textured implants. In 2021, SINTX purchased new equipment for
its research and development team to develop new composite products of silicon nitride with rigid polymers and fabrics. We have received
three NIH grants over the last fifteen months in order to develop 3D printed silicon nitride / polymer implantable medical devices. |
|
|
● |
Apply
our silicon nitride technology platform to new medical opportunities. We believe our biomaterial expertise, flexible manufacturing
process, and strong intellectual property will allow us to transition currently available medical device products made of inferior
biomaterials and manufacture them using silicon nitride and our technology platform to improve their characteristics. We are seeking
partnerships to utilize our capabilities and manufacture products for medical OEM and private label partnerships. We see specific
opportunities in markets such as foot and ankle, dental, maxillofacial, and arthroplasty. |
Intellectual
Property
We
rely on a combination of patents, trademarks, trade secrets, nondisclosure agreements, proprietary information ownership agreements and
other intellectual property measures to protect our intellectual property rights. We believe that to have a competitive advantage, we
must continue to develop and maintain the proprietary aspects of our technologies.
We
have twelve issued U.S. patents, seven foreign patents, eighteen pending U.S. non-provisional patent applications, no pending U.S. provisional
patent applications, one hundred twenty-five pending foreign applications and one pending PCT patent application. Our first issued patent expired
in 2016, with the last of these patents expiring in 2039.
We
have three U.S. patents directed to articulating implants using our high-strength, high toughness doped silicon nitride solid ceramic.
These issued patents, which include US 7,666,229; US 9,051,639; and US 9,517,136 will expire in November 2023, September 2032, and March
2034, respectively.
We
also have one U.S. patent related to our CSC technology that are directed to implants that have both a dense load-bearing, or cortical,
component and a porous, or cancellous, component, together with a surface coating. The issued patent US 9,649,197 will expire in July
2035.
In
addition, U.S. Patent No. 10,806,831 directed to antibacterial implants and U.S. Patent No. 11,191,787 directed to antipathogenic devices
were recently issued which will expire in 2037 and 2039, respectively.
With
respect to PCT patent application serial no. PCT/US2018/014781 directed to antibacterial biomedical implants, we entered the national
stage in Europe, Australia, Brazil, Canada, China, Japan, Hong Kong, and South Korea as well as one divisional patent application filed
in Europe and two divisional applications filed in Japan to seek potential patent protection for our proprietary technologies in those
countries.
With
respect to PCT patent application serial no. PCT/US2019/026789 directed to methods for improving the wear performance of ceramic-polyethylene
or ceramic-ceramic articulation couples utilized in orthopaedic joint prostheses, we entered the national stage in Australia, Brazil,
Canada, Europe, Japan, Korea, and Mexico to seek patent protection for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2019/048072 directed to antipathogenic devices and methods, we entered the national stage
in Europe, Japan, Mexico, Australia, Brazil, Canada, South Korea, China, and India to seek patent protection for our proprietary technologies
in those countries.
With
respect to PCT application serial no. PCT/US2020/037170 directed to methods of surface functionalization of zirconia-toughened alumina
with silicon nitride, we entered the national stage in Europe, Australia, Brazil, Canada, China, India, Japan, and Mexico to seek patent
protection for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/014725 directed to antifungal composites and methods thereof, we entered the national
stage in Europe, Brazil, Japan, Australia, Canada, China, India, Mexico, and South Korea to seek patent protection for our proprietary
technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/027258 directed to antipathogenic face mask, we entered the national stage in Australia,
Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico to seek patent protection for our proprietary technologies in those
countries.
With
respect to PCT application serial no. PCT/US2021/027263 directed to systems and methods for rapid inactivation of SARS-CoV2 by silicon
nitride, copper, and aluminum nitride, we entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South
Korea, and Mexico to seek patent protection for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/038364 directed to antipathogenic devices and methods thereof for antifungal applications,
we entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico to seek patent protection
for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/028975 directed to methods for laser coating of silicon nitride on a metal substrate,
we entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico to seek patent protection
for our proprietary technologies in those countries.
With
respect to PCT application serial no PCT/US2021/028641 directed to methods of silicon nitride laser cladding, we entered the national
stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico to seek patent protection for our proprietary
technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/027270 directed to antiviral compositions and devices and methods of use thereof, we
entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico to seek patent protection
for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/056461 directed to systems and methods for selective laser sintering of silicon nitride
and metal composites, we entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico
to seek patent protection for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/056452 directed to systems and methods for hot-isostatic pressing to increase nitrogen
content in silicon nitride, we entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and
Mexico to seek patent protection for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/062650 directed to nitride based antipathogenic compositions and devices and method
of use therof, we entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico to seek
patent protection for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2022/023868 directed to systems and methods for physical vapor deposition silicon nitride
coatings having antimicrobial and osteogenic enhancements, we entered the national stage in Australia, Brazil, Canada, China, Europe,
India, Japan, South Korea, and Mexico to seek patent protection for our proprietary technologies in those countries.
In
relation to the sale of our spine implant business to CTL Medical under the Asset Purchase Agreement dated September 5, 2018, we assigned
our entire right to forty-eight (48) U.S. patents, two (2) foreign patents and three (3) pending patent applications from our patent
portfolio to CTL Medical under that transaction. In addition, three (3) U.S. patents (U.S. patent nos. 9,399,309; 9,517,136; and 9,649,197)
directed to silicon nitride manufacturing processes were licensed to CTL Medical under an irrevocable, fully paid-up, worldwide license
for a ten-year term with CTL Medical also having a Right of First Negotiation to acquire these patents if SINTX decides to later sell
these IP assets to a third party.
Our
remaining issued patents and pending applications are directed to additional aspects of our products and technologies including, among
other things:
● |
designs
for intervertebral fusion devices; |
|
|
● |
designs
for hip implants; |
|
|
● |
designs
for knee implants; |
|
|
● |
implants
with improved antibacterial characteristics; |
|
|
● |
implants
with improved wear performance and surface functionalization |
|
|
● |
antipathogenic,
antibacterial, antimicrobial, antifungal, and antiviral compositions, devices, and methods; and |
|
|
● |
methods
and systems for hot-isostatic pressing laser cladding, laser coating, and laser sintering of silicon nitride. |
We
also expect to rely on trade secrets, know-how, continuing technological innovation and in-licensing opportunities to develop and maintain
our intellectual property position. However, trade secrets are difficult to protect. We seek to protect the trade secrets in our proprietary
technology and processes, in part, by entering into confidentiality agreements with commercial partners, collaborators, employees, consultants,
scientific advisors and other contractors and into invention assignment agreements with our employees and some of our commercial partners
and consultants. These agreements are designed to protect our proprietary information and, in the case of the invention assignment agreements,
to grant us ownership of the technologies that are developed.
Recent
Developments
Amendment
to Equity Distribution Agreement
On
October 12, 2023, we entered into an amendment to our Equity Distribution Agreement (the “Distribution Agreement”) with Maxim,
pursuant to which (1) the expiration date of the Distribution Agreement was extended to the earlier of: (i) the sale of shares having
an aggregate offering price of $15,000,000, (ii) the termination by either us or Maxim upon the provision of fifteen (15) days written
notice, or (iii) February 25, 2025 and (2) updates were made to references to the Company’s registration statement on Form S-3
filed on October 12, 2023. No other changes were made to the terms of the Distribution Agreement.
Corporate
Information
Our
headquarters is located at 1885 West 2100 South, Salt Lake City, Utah 84119, and our telephone number is (801) 839-3500. We maintain
a website at https://www.sintx.com. Information on the website is not incorporated by reference and is not a part of this prospectus.
Summary
of the Offering
Securities
to be Offered |
|
Up
to 11,103,708 Units on a best-efforts basis, at an assumed public offering price of
$0.4503 per Unit. Each Unit consists of one share of common stock and one Class E
Warrant.
We
are also offering to each purchaser, with respect to the purchase of Units that would otherwise result in the purchaser’s beneficial
ownership exceeding 4.99% of our outstanding shares of common stock immediately following the consummation of this offering, the
opportunity to purchase one pre-funded warrant in lieu of one share of common stock. A holder of pre-funded warrants will not have
the right to exercise any portion of its pre-funded warrant if the holder, together with its affiliates, would beneficially own in
excess of 4.99% (or, at the election of the holder, such limit may be increased to up to 9.99%) of the number of shares of common
stock outstanding immediately after giving effect to such exercise. Each pre-funded warrant will be exercisable for one share of
common stock. The purchase price per pre-funded warrant will be equal to the price per share of common stock, minus $0.0001, and
the exercise price of each pre-funded warrant will equal $0.0001 per share. The pre-funded warrants will be immediately exercisable
(subject to the beneficial ownership cap) and may be exercised at any time in perpetuity until all of the pre-funded warrants are
exercised in full. For more information regarding the pre-funded warrants, you should carefully read the section titled “Description
of Securities Included in this Offering” in this prospectus.
The
Units will not be certificated or issued in stand-alone form. The shares of common stock and pre-funded warrants, if any, can each
be purchased in this offering only with the accompanying Class E Warrants as part of a Unit, but the components of the Units will
immediately separate upon issuance. We are also registering the shares of common stock issuable from time to time upon exercise of
the Class E Warrants and pre-funded warrants included in the Units offered hereby. |
|
|
|
Size
of Offering |
|
Up
to $5,000,000 |
|
|
|
Subscription
Price Per Unit |
|
$0.4503
(or $0.4502 per Unit including one pre-funded
warrant in lieu of one share of common stock) |
|
|
|
Description
of the Class E Warrants |
|
Each
Class E Warrant will have an exercise price of $ per share (not less than 100% and not
more than 120% of the public offering price of each Unit sold in this offering), will be exercisable upon issuance and will expire
five years from issuance. Each Class E Warrant is exercisable for one share of common stock, subject to adjustment in the
event of stock dividends, stock splits, stock combinations, reclassifications, reorganizations or similar events affecting our shares
of common stock as described herein. The terms of the Class E Warrants will be governed by a Warrant Agency Agreement, dated as of
the closing date of this offering, that we expect to be entered into between us and Equiniti Trust Company, LLC or its affiliate
(the “Warrant Agent”). This prospectus also relates to the offering of the shares of common stock issuable upon exercise
of the Class E Warrants. For more information regarding the Class E Warrants, you should carefully read the section titled “Description
of Securities Included in this Offering” in this prospectus. |
Placement
Agent Warrants |
|
We
have agreed to issue to the placement agent warrants to purchase a number of shares of common stock equal to 4% of the total number
of securities being sold in the Offering. The placement agent’s warrants will be exercisable at any time, and from time to
time, in whole or in part, during the four and one-half year period commencing 180 days from the effective date of the registration
statement of which this prospectus forms a part. The placement agent’s warrants will be exercisable at a price per share equal
to 110.0% of the exercise price of the Class E Warrants. We are also registering the shares of common stock issuable upon the exercise
of the placement agent warrants. |
|
|
|
Common
Stock Outstanding Prior to This Offering |
|
4,259,757
shares |
|
|
|
Common
Stock Outstanding after This Offering |
|
Up
to approximately 15,636,465 shares (assuming no issuance of pre-funded warrants and no exercise of Class E Warrants issued
in connection with this offering), or 26,467,173 shares if the Class E Warrants are exercised in full. |
|
|
|
Use
of Proceeds |
|
Assuming
the maximum number of Units are sold in this offering at an assumed public offering price of $0.4503 per Unit, which represents
the closing price of our common stock on Nasdaq on November 1, 2023, and assuming no issuance of pre-funded warrants and no
exercise of Class E Warrants issued in connection with this offering, we estimate the net proceeds of the Offering will be approximately
$4.35 million. However, this is a best efforts offering with no minimum number of securities or amount of proceeds as a condition
to closing, and we may not sell all or any of these securities offered pursuant to this prospectus; as a result, we may receive significantly
less in net proceeds. We intend to use the net proceeds from this offering for general corporate purposes, which may include research
and development expenses, capital expenditures, working capital and general and administrative expenses, and potential acquisitions
of or investments in businesses, products and technologies that complement our business, although we have no present commitments
or agreements to make any such acquisitions or investments as of the date of this prospectus. We expect to use any proceeds we receive
from the exercise of Class E Warrants for substantially the same purposes and in substantially the same manner. Pending these uses,
we intend to invest the funds in short-term, investment grade, interest-bearing securities. It is possible that, pending their use,
we may invest the net proceeds in a way that does not yield a favorable, or any, return for us. See “Use of Proceeds.”
Our management will have broad discretion in the application of the net proceeds, and investors
will be relying on our judgment regarding the application of the net proceeds from this offering. See “Risk Factors”
for a discussion of certain risks that may affect our intended use of the net proceeds from this offering. |
|
|
|
Market
for Common Stock |
|
Our
common stock is listed on Nasdaq under the symbol “SINT.” |
|
|
|
Market
for Pre-Funded Warrants and Class E Warrants |
|
There
is no established public trading market for the pre-funded warrants or Class E Warrants, and we do not expect a market to develop.
In addition, we do not intend to apply for listing of the pre-funded warrants or Class E Warrants on any securities exchange or recognized
trading system. Without an active trading market, the liquidity of the pre-funded warrants
and Class E Warrants will be limited. |
|
|
|
Risk
Factors |
|
An
investment in our securities is highly speculative and involves a significant degree of risk. See “Risk Factors” and
other information included in this prospectus for a discussion of factors you should carefully consider before deciding to invest
in our securities. |
|
|
|
Best
Efforts Offering |
|
We
have agreed to offer and sell the securities offered hereby to the purchasers through the placement agent. The placement agent is
not required to buy or sell any specific number or dollar amount of the securities offered hereby, but it will use its reasonable
best efforts to solicit offers to purchase the securities offered by this prospectus. See “Plan of Distribution” on page
35 of this prospectus. |
The
number of shares of common stock to be outstanding after this offering is based on 4,259,757 shares of common stock outstanding
as of October 31, 2023 and excludes:
● |
11,909
shares of common stock issuable upon the exercise of outstanding options and restricted stock units granted as of June 30, 2023 under
our equity incentive plans at a weighted average exercise price of $120 per share; |
● |
1,244,754
shares of common stock issuable upon the exercise of outstanding warrants issued as of June 30, 2023; |
● |
10,576
shares of our common stock issuable upon the conversion of 26 shares of series B convertible preferred stock outstanding as of June
30, 2023; |
● |
338
shares of our common stock issuable upon the conversion of 50 shares of series C convertible preferred stock outstanding as of June
30, 2023; and |
● |
11,919
shares of common stock reserved for issuance upon conversion of 180 shares of the Series D Preferred Stock outstanding as of June
30, 2023. |
Unless
otherwise indicated, the information in this prospectus, including the number of shares outstanding after this offering, does not reflect
any issuance, exercise, vesting, expiration, or forfeiture of any additional equity awards under our incentive plans that occurred after
June 30, 2023.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Before making an investment decision with respect to our securities, we urge you to
carefully consider the risks described in the “Risk Factors” section herein and in our Annual Report on Form 10-K for the
fiscal year ended December 31, 2022 under the heading “Item 1A. Risk Factors,” and as described or may be described in any
subsequent quarterly report on Form 10-Q under the heading “Item 1A. Risk Factors,” as well as in any applicable prospectus
supplement and contained or to be contained in our filings with the SEC and incorporated by reference in this prospectus, together with
all of the other information contained in this prospectus, or any applicable prospectus supplement. For a description of these reports
and documents, and information about where you can find them, see “Where You Can Find More Information” and “Incorporation
by Reference.” These risk factors relate to our business, intellectual property, regulatory matters, and ownership of our common
stock. In addition, the following risk factors present material risks and uncertainties associated with the Offering. The risks and uncertainties
incorporated by reference into this prospectus or described below are not the only ones we face. Additional risks and uncertainties not
presently known or which we consider immaterial as of the date hereof may also have an adverse effect on our business. If any of the
matters discussed in the following risk factors were to occur, our business, financial condition, results of operations, cash flows or
prospects could be materially adversely affected, the market price of our common stock could decline and you could lose all or part of
your investment in our securities.
Risks
Related to This Offering and Ownership of Our Securities
There
is currently a limited market for our securities, and any trading market that exists in our securities may be highly illiquid and may
not reflect the underlying value of our net assets or business prospects.
Although
our common stock is traded on Nasdaq, there is currently a limited market for our common stock and an active market may never develop.
Investors are cautioned not to rely on the possibility that an active trading market may develop.
The
best efforts structure of this offering may have an adverse effect on our business plan.
The
placement agent is offering the securities in this offering on a best efforts basis. The placement agent is not required to purchase
any securities, but will use its best efforts to sell the securities offered. As a “best efforts” offering, there can be
no assurance that the offering contemplated hereby will ultimately be consummated or will result in any proceeds being made available
to us. The success of this offering will impact our ability to use the proceeds to execute our business plan. We may have insufficient
capital to implement our business plan, potentially resulting in greater operating losses unless we are able to raise the required capital
from alternative sources. There is no assurance that alternative capital, if needed, would be available on terms acceptable to us, or
at all.
Future
sales of our common stock may depress our share price.
As
of September 29, 2023, we had 4,208,151 shares of our common stock outstanding. Sales of a number of shares of common stock in the public
market or issuances of additional shares pursuant to the exercise of our outstanding warrants, or the expectation of such sales or exercises,
could cause the market price of our common stock to decline. We may also sell additional shares of common stock or securities convertible
into or exercisable or exchangeable for common stock in subsequent public or private offerings or other transactions, which may adversely
affect the market price of our common stock.
Our
stockholders may experience substantial dilution in the value of their investment if we issue additional shares of our capital stock.
Our
charter allows us to issue up to 250,000,000 shares of our common stock and up to 130,000,000 shares of preferred stock. To raise additional
capital, we may in the future sell additional shares of our common stock or other securities convertible into or exchangeable for our
common stock at prices that are lower than the prices paid by existing stockholders, and investors purchasing shares or other securities
in the future could have rights superior to existing stockholders, which could result in substantial dilution to the interests of existing
stockholders.
Certain
of our outstanding shares of convertible preferred stock and warrants contain full-ratchet anti-dilution protection, which may cause
significant dilution to our stockholders.
As
of June 30, 2023, we had outstanding 26 shares of Series B convertible preferred stock convertible into an aggregate of 10,576 shares
of common stock, and warrants issued in October 2022 that are exercisable for an aggregate of 616,641 shares of common stock. The Series
B convertible preferred stock and October 2022 warrants contain full-ratchet anti-dilution provisions which, subject to limited exceptions,
would reduce the conversion price of the Series B preferred stock (and increase the number of shares issuable under the Series B preferred
stock) and reduce the exercise price of the October 2022 warrants in the event that we in the future issue common stock, or securities
convertible into or exercisable to purchase common stock, at a price per share lower than the conversion price or exercise price then
in effect. Depending upon how such provisions are interpreted, the alternative cashless exercise provision contained in the Class C Warrants
and Class D Warrants could potentially result in a significant reduction in the conversion or exercise price of the Series B convertible
preferred stock and October 2022 warrants. Our outstanding 26 shares of Series B preferred stock are, prior to this offering, convertible
into 10,576 shares of common stock at a conversion price of $2.7042 per share. The October 2022 warrants are exercisable at an exercise
price of $2.7042 per share. These full ratchet anti-dilution provisions will likely be triggered by the issuance of the Units in this
offering.
Our
management will have broad discretion over the use of the net proceeds from this offering, you may not agree with how we use the proceeds
and the proceeds may not be invested successfully.
Other
than amounts required to be paid to certain lenders, our management will have broad discretion as to the use of the net proceeds from
this offering and could use them for purposes other than those contemplated at the time of commencement of this offering. Accordingly,
you will be relying on the judgment of our management with regard to the use of these net proceeds, and you will not have the opportunity,
as part of your investment decision, to assess whether the proceeds are being used appropriately. It is possible that, pending their
use, we may invest the net proceeds in a way that does not yield a favorable, or any, return for us. The failure of our management to
use such funds effectively could have a material adverse effect on our business, financial condition, operating results and cash flows.
Your
interest in our Company may be diluted as a result of this offering.
The
shares issuable upon the exercise of the Class E Warrants to be issued pursuant to the offering will dilute the ownership interest of
stockholders not participating in this offering and holders of Class E Warrants who have not exercised their Class E Warrants.
This
offering may cause the trading price of our common stock to decrease.
The
number of shares of common stock underlying the securities we propose to issue and ultimately will issue if this offering is completed,
may result in an immediate decrease in the market price of our common stock. This decrease may continue after the completion of this
offering. We cannot predict the effect, if any, that the availability of shares for future sale represented by the Class E Warrants issued
in connection with the offering will have on the market price of our common stock from time to time.
Holders
of pre-funded warrants and Class E Warrants will have no rights as a common stockholder until such holders exercise their pre-funded
warrants and Class E Warrants, respectively, and acquire our common stock.
Until
holders of pre-funded warrants and Class E Warrants acquire shares of our common stock upon exercise of the pre-funded warrants and Class
E Warrants, as the case may be, holders of pre-funded warrants and Class E Warrants will have no rights with respect to the shares of
our common stock underlying such pre-funded warrants and Class E Warrants. Upon exercise of the pre-funded warrants and Class E Warrants,
the holders thereof will be entitled to exercise the rights of a common stockholder only as to matters for which the record date occurs
after the exercise date.
There
is no public market for the pre-funded warrants or Class E Warrants in this offering.
There
is no established public trading market for the pre-funded warrants or Class E Warrants, and we do not expect a market to develop. In
addition, we do not intend to apply for listing of the pre-funded warrants or Class E Warrants on any securities exchange or recognized
trading system. Without an active trading market, the liquidity of the pre-funded warrants and
Class E Warrants will be limited.
Absence
of a public trading market for the pre-funded warrants or Class E Warrants may limit your ability to resell the pre-funded warrants or
Class E Warrants.
There
is no established trading market for the pre-funded warrants or Class E Warrants to be issued pursuant to this offering, and they will
not be listed for trading on Nasdaq or any other securities exchange or market, and the pre-funded warrants or Class E Warrants may not
be widely distributed. Purchasers of the pre-funded warrants or Class E Warrants may be unable to resell the pre-funded warrants or Class
E Warrants or sell them only at an unfavorable price for an extended period of time, if at all.
The
market price of our common stock may never exceed the exercise price of the Class E Warrants issued in connection with this offering.
The
Class E Warrants being issued in connection with this offering become exercisable upon issuance and will expire five years from the date
of issuance. The market price of our common stock may never exceed the exercise price of the Class E Warrants prior to their date of
expiration. Any Class E Warrants not exercised by their date of expiration will expire worthless and we will be under no further obligation
to the Class E Warrant holder.
Since
the Class E Warrants are executory contracts, they may have no value in a bankruptcy or reorganization proceeding.
In
the event a bankruptcy or reorganization proceeding is commenced by or against us, a bankruptcy court may hold that any unexercised Class
E Warrants are executory contracts that are subject to rejection by us with the approval of the bankruptcy court. As a result, holders
of the Class E Warrants may, even if we have sufficient funds, not be entitled to receive any consideration for their Class E Warrants
or may receive an amount less than they would be entitled to if they had exercised their Class E Warrants prior to the commencement of
any such bankruptcy or reorganization proceeding.
The
exclusive jurisdiction, waiver of trial by jury, and choice of law clauses set forth in the form of securities purchase agreement to
be used in this offering may have the effect of limiting a purchaser’s rights to bring legal action against us and could limit
a purchaser’s ability to obtain a favorable judicial forum for disputes with us.
The
form of securities purchase agreement used in this offering requires investors to consent to exclusive jurisdiction to courts located
in New York, New York and provides for a waiver of the right to a trial by jury. Disputes arising under the form of securities purchase
agreement are governed by Delaware and New York law, respectively. These provisions may have the effect of limiting the ability of investors
to bring a legal claim against us due to geographic limitations and/or preference for a trial by jury and may limit an investor’s
ability to bring a claim in a judicial forum that it finds favorable for disputes with us. Alternatively, if a court were to find this
exclusive forum provision inapplicable to, or unenforceable in respect of, one or more of the specified types of actions or proceedings,
we may incur additional costs associated with resolving such matters in other jurisdictions, which could adversely affect our business
and financial condition.
We
could be delisted from Nasdaq, which could seriously harm the liquidity of our stock and our ability to raise capital.
On
October 20, 2023, we received a notice from the
Nasdaq Listing Qualifications Department (the “Staff”) of the Nasdaq Stock Market LLC (“Nasdaq”) stating that
the bid price of our common stock for the last 30 consecutive trading days had closed below the minimum $1.00 per share required
for continued listing under Listing Rule 5550(a)(2). We initially have a period of 180 calendar days, or until April
17, 2024, to regain compliance with such rule. If we do not regain compliance with Rule 5550(a)(2) by April 17, 2024, we may be
afforded a second 180 calendar day period to regain compliance. To qualify, we would be required to meet the continued listing requirement
for market value of publicly held shares and all other initial listing standards for The Nasdaq Capital Market, except for the minimum
bid price requirement. In addition, we would be required to notify Nasdaq of our intent to cure the deficiency during the second compliance
period, which may include, if necessary, implementing a reverse stock split. There can be no assurance that we will be able to regain
compliance with Nasdaq requirements or will otherwise be in compliance with other Nasdaq listing criteria.
If
we cease to be eligible to trade on the Nasdaq Capital Market:
● |
We
may have to pursue trading on a less recognized or accepted market, such as the OTC Bulletin Board or the “pink sheets.” |
|
|
● |
The
trading price of our common stock could suffer, including an increased spread between the “bid” and “asked”
prices quoted by market makers. |
|
|
● |
Shares
of our common stock could be less liquid and marketable, thereby reducing the ability of stockholders to purchase or sell our shares
as quickly and as inexpensively as they have done historically. If our stock is traded as a “penny stock,” transactions
in our stock would be more difficult and cumbersome. |
● |
We
may be unable to access capital on favorable terms or at all, as companies trading on alternative markets may be viewed as less attractive
investments with higher associated risks, such that existing or prospective institutional investors may be less interested in, or
prohibited from, investing in our common stock. This may also cause the market price of our common stock to decline. |
The
price of our common stock is volatile and is likely to continue to fluctuate due to reasons beyond our control.
The
volatility of publicly traded company stocks, including shares of our common stock, often do not correlate to the operating performance
of the companies represented by such stocks or our operating performance. Some of the factors that may cause the market price of our
common stock to fluctuate include:
● |
the
sentiment of retail investors (including as may be expressed on financial trading and other social media sites and online forums); |
|
|
● |
the
direct access by retail investors to broadly available trading platforms; |
|
|
● |
the
amount and status of short interest in our securities; |
|
|
● |
access
to margin debt; |
|
|
● |
trading
in options and other derivatives on our common stock and any related hedging; |
|
|
● |
CTL’s
ability to sell silicon nitride based spinal fusion products and our cost of manufacturing such products for CTL; |
|
|
● |
our
ability to develop, obtain regulatory clearances or approvals for, and market new and enhanced product candidates on a timely basis; |
|
|
● |
our
ability to enter into OEM and private label partnership agreements and the terms of those agreements; |
|
|
● |
our
ability to develop products that are effective in inactivating the SARS-CoV-2 virus; |
|
|
● |
changes
in governmental regulations or in the status of our regulatory approvals, clearances or future applications; |
|
|
● |
our
announcements or our competitors’ announcements regarding new products, product enhancements, significant contracts, number
and productivity of distributors, number of hospitals and surgeons using products, acquisitions or strategic investments; |
|
|
● |
announcements
of technological or medical innovations for the treatment of orthopedic pathology; |
|
|
● |
delays
or other problems with the manufacturing of our products, product candidates and related instrumentation; |
|
|
● |
volume
and timing of orders for our products and our product candidates, if and when commercialized; |
|
|
● |
changes
in the availability of third-party reimbursement in the United States and other countries; |
|
|
● |
quarterly
variations in our or our competitors’ results of operations; |
|
|
● |
changes
in earnings estimates or recommendations by securities analysts, if any, who cover our common stock; |
|
|
● |
failure
to meet estimates or recommendations by securities analysts, if any, who cover our stock; |
● |
changes
in the fair value of our derivative liabilities resulting from changes in the market price of our common stock, which may result
in significant fluctuations in our quarterly and annual operating results; |
|
|
● |
changes
in healthcare policy in the United States and internationally; |
|
|
● |
product
liability claims or other litigation involving us; |
|
|
● |
sales
of a substantial aggregate number of shares of our common stock; |
|
|
● |
sales
of large blocks of our common stock, including sales by our executive officers, directors and significant stockholders; |
|
|
● |
disputes
or other developments with respect to intellectual property rights; |
|
|
● |
changes
in accounting principles; |
|
|
● |
changes
to tax policy; and |
|
|
● |
general
market conditions and other factors, including factors unrelated to our operating performance or the operating performance of our
competitors. |
These
and other external factors may cause the market price and demand for our common stock to fluctuate substantially, which may limit or
prevent our stockholders from readily selling their shares of our common stock and may otherwise negatively affect the liquidity of our
common stock. In addition, in the past, when the market price of a stock has been volatile, holders of that stock have sometimes instituted
securities class action litigation against the company that issued the stock. If our stockholders brought a lawsuit against us, we could
incur substantial costs defending the lawsuit regardless of the merits of the case or the eventual outcome. Such a lawsuit also would
divert the time and attention of our management from running our company.
Securities
analysts may not continue to provide coverage of our common stock or may issue negative reports, which may have a negative impact on
the market price of our common stock.
Since
completing our initial public offering of shares of our common stock in February 2014, a limited number of securities analysts have been
providing research coverage of our common stock. If securities analysts do not continue to cover our common stock, the lack of research
coverage may cause the market price of our common stock to decline. The trading market for our common stock may be affected in part by
the research and reports that industry or financial analysts publish about our business. If one or more of the analysts who elect to
cover us downgrade our stock, our stock price would likely decline rapidly. If one or more of these analysts cease coverage of us, we
could lose visibility in the market, which in turn could cause our stock price to decline. In addition, under the Sarbanes-Oxley Act
of 2002, and a global settlement among the SEC, other regulatory agencies and a number of investment banks, which was reached in 2003,
many investment banking firms are required to contract with independent financial analysts for their stock research. It may be difficult
for a company such as ours, with a smaller market capitalization, to attract independent financial analysts that will cover our common
stock. This could have a negative effect on the market price of our stock.
Anti-takeover
provisions in our organizational documents and Delaware law may discourage or prevent a change in control, even if an acquisition would
be beneficial to our stockholders, which could affect our stock price adversely and prevent attempts by our stockholders to replace or
remove our current management.
Our
restated certificate of incorporation, as amended, (the “Restated Certificate of Incorporation”) and amended and restated
bylaws (the “Restated Bylaws”) contain provisions that could discourage, delay or prevent a merger, acquisition or other
change in control of our company or changes in our board of directors that our stockholders might consider favorable, including transactions
in which you might receive a premium for your shares. These provisions also could limit the price that investors might be willing to
pay in the future for shares of our common stock, thereby depressing the market price of our common stock. Stockholders who wish to participate
in these transactions may not have the opportunity to do so. Furthermore, these provisions could prevent or frustrate attempts by our
stockholders to replace or remove management. These provisions:
● |
allow
the authorized number of directors to be changed only by resolution of our board of directors; |
|
|
● |
provide
for a classified board of directors, such that not all members of our board will be elected at one time; |
|
|
● |
prohibit
our stockholders from filling board vacancies, limit who may call stockholder meetings, and prohibit the taking of stockholder action
by written consent; |
|
|
● |
prohibit
our stockholders from making certain changes to our restated certificate of incorporation or restated bylaws except with the approval
of holders of 75% of the outstanding shares of our capital stock entitled to vote; |
|
|
● |
require
advance written notice of stockholder proposals that can be acted upon at stockholders’ meetings and of director nominations
to our board of directors; and |
|
|
● |
authorize
our board of directors to create and issue, without prior stockholder approval, preferred stock that may have rights senior to those
of our common stock and that, if issued, could operate as a “poison pill” to dilute the stock ownership of a potential
hostile acquirer to prevent an acquisition that is not approved by our board of directors. |
In
addition, we are subject to the provisions of Section 203 of the Delaware General Corporation Law, which may prohibit certain business
combinations with stockholders owning 15% or more of our outstanding voting stock. Any delay or prevention of a change in control transaction
or changes in our board of directors could cause the market price of our common stock to decline.
We
do not intend to pay cash dividends.
We
have never declared or paid cash dividends on our capital stock and we do not anticipate paying any cash dividends in the foreseeable
future. We currently intend to retain all available funds and any future earnings for debt service and use in the operation and expansion
of our business. In addition, the terms of any future debt or credit facility may preclude us from paying any dividends.
Our
outstanding shares of Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series D Convertible Preferred Stock
and our outstanding common stock warrants are convertible and exercisable into shares of our common stock and when converted or exercised,
the issuance of additional shares of common stock may result in downward pressure on the trading price of our common stock.
We
have outstanding shares of Series B Convertible Preferred Stock, Series C Convertible Preferred Stock and Series D Convertible Preferred
Stock that are each convertible into shares of common stock. We believe that as such holders convert their preferred shares into common
stock, they will immediately sell their shares of common stock. The sale of such shares of common stock may result in downward pressure
on the trading price of our common stock resulting in a lower stock price. Additionally, we have outstanding warrants to purchase shares
of common stock. Many of these warrants have a cashless exercise provision that if exercised may also result in downward pressure on
the trading price of our common stock and cause such price to decline.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated herein by reference contain forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements are based on our management’s current beliefs, expectations and assumptions about
future events, conditions and results and on information currently available to us. Discussions containing these forward-looking statements
may be found, among other places, in the Sections titled “Business,” “Risk Factors” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” in this prospectus and in any of our filings with the
SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
All
statements, other than statements of historical fact, included or incorporated herein regarding our strategy, future operations, financial
position, future revenues, projected costs, plans, prospects and objectives are forward-looking statements. Words such as “expect,”
“anticipate,” “intend,” “plan,” “believe,” “seek,” “estimate,”
“think,” “may,” “could,” “will,” “would,” “should,” “continue,”
“potential,” “likely,” “opportunity” and similar expressions or variations of such words are intended
to identify forward-looking statements but are not the exclusive means of identifying forward-looking statements. Examples of our forward-looking
statements include:
● |
our
ability to achieve sufficient market acceptance of any of our products or product candidates; |
|
|
● |
our
ability to enter into and maintain successful OEM arrangements with third parties; |
|
|
● |
our
perception of the growth in the size of the potential market for our products and product candidates; |
|
|
● |
our
estimate of the advantages of our silicon nitride technology platform; |
|
|
● |
our
ability to become a profitable biomaterial technology company; |
|
|
● |
our
ability to design, manufacture and commercialize armor plates for military, police and civilian use; |
|
|
● |
Our
ability to successfully integrate the recently acquired Technology Assessment & Transfer and develop and commercialize products
arising from this acquisition; |
|
|
● |
our
estimates regarding our needs for additional financing and our ability to obtain such additional financing on suitable terms; |
|
|
● |
our
ability to succeed in obtaining FDA clearance or approvals for our product candidates; |
|
|
● |
our
ability to receive CE Marks for our product candidates; |
|
|
● |
the
timing, costs and other limitations involved in obtaining regulatory clearance or approval for any of our product candidates and
product candidates and, thereafter, continued compliance with governmental regulation of our existing products and activities; |
|
|
● |
our
ability to protect our intellectual property and operate our business without infringing upon the intellectual property rights of
others; |
|
|
● |
our
ability to obtain sufficient quantities and satisfactory quality of raw materials to meet our manufacturing needs; |
|
|
● |
the
availability of adequate coverage reimbursement from third-party payers in the United States; |
|
|
● |
our
estimates regarding anticipated operating losses, future product revenue, expenses, capital requirements and liquidity; |
|
|
● |
our
ability to maintain and continue to develop our sales and marketing infrastructure; |
● |
our
ability to enter into and maintain suitable arrangements with an adequate number of distributors; |
|
|
● |
our
manufacturing capacity to meet future demand; |
|
|
● |
our
ability to develop effective and cost-efficient manufacturing processes for our products; |
|
|
● |
our
reliance on third parties to supply us with raw materials and our non-silicon nitride products and instruments; |
|
|
● |
the
safety and efficacy of products and product candidates; |
|
|
● |
potential
changes to the healthcare delivery systems and payment methods in the United States or internationally; |
|
|
● |
our
ability to attract and retain a qualified management team, engineering team, sales and marketing team, distribution team, and other
qualified personnel and advisors. |
Because
forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified and some
of which are beyond our control, you should not rely on these forward-looking statements as predictions of future events. The events
and circumstances reflected in our forward-looking statements may not be achieved or occur and actual results could differ materially
from those projected in the forward- looking statements. Moreover, we operate in an evolving environment. New risk factors and uncertainties
may emerge from time to time, and it is not possible for management to predict all risk factors and uncertainties. Except as required
by applicable law, we do not plan to publicly update or revise any forward- looking statements contained herein, whether as a result
of any new information, future events, changed circumstances or otherwise.
This
prospectus and the documents incorporated herein by reference also refer to estimates and other statistical data made by independent
parties and by us relating to market size and growth and other data about our industry. This data involves a number of assumptions and
limitations, and you are cautioned not to give undue weight to such estimates. In addition, projections, assumptions and estimates of
our future performance and the future performance of the markets in which we operate are necessarily subject to a high degree of uncertainty
and risk.
USE
OF PROCEEDS
We
estimate that the net proceeds from the Offering will be approximately $4.35 million (assuming the sale of all Units offered hereby at
the assumed public offering price of $0.4503 per Unit, which represents the closing sale price of our common stock on Nasdaq on
November 1, 2023, and assuming no issuance of pre-funded warrants and no exercise of the Class E Warrants issued in connection
with this offering), after deducting expenses relating to this offering payable by us estimated at approximately $0.7 million, including
placement agent fees and expenses which include fees payable to Ascendiant Capital Markets, LLC (“Ascendiant”), for certain
financial advisor services provided in connection with the Offering.
| |
100% of Units Sold | | |
% of Total | | |
50% of Units Sold | | |
% of Total | | |
25% of Units Sold | | |
% of Total | |
Gross Proceeds from Offering | |
$ | 5,000,000 | | |
| | | |
$ | 2,500,000 | | |
| | | |
$ | 1,250,000 | | |
| | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Use of Proceeds | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Placement Agent Fees | |
$ | 350,000 | | |
| 7.0 | % | |
$ | 175,000 | | |
| 7.0 | % | |
$ | 87,500 | | |
| 7.0 | % |
Offering Expenses | |
$ | 300,000 | | |
| 6.0 | % | |
$ | 300,000 | | |
| 12.0 | % | |
$ | 300,000 | | |
| 24.0 | % |
General Corporate | |
$ | 4,350,000 | | |
| 87.0 | % | |
$ | 2,025,000 | | |
| 81.0 | % | |
$ | 862,500 | | |
| 69.0 | % |
Total Use of Proceeds | |
$ | 5,000,000 | | |
| 100.0 | % | |
$ | 2,500,000 | | |
| 100.0 | % | |
$ | 1,250,000 | | |
| 100.0 | % |
We
intend to use the net proceeds from the Offering for general corporate purposes, which may include research and development expenses,
capital expenditures, working capital and general and administrative expenses, and potential acquisitions of or investments in businesses,
products and technologies that complement our business, although we have no present commitments or agreements to make any such acquisitions
or investments as of the date of this prospectus. We expect to use any proceeds we receive from the exercise of Class E Warrants for
substantially the same purposes and in substantially the same manner. Pending these uses, we intend to invest the funds in short-term,
investment grade, interest-bearing securities. It is possible that, pending their use, we may invest the net proceeds in a way that does
not yield a favorable, or any, return for us.
Our
management will have broad discretion as to the allocation of the net proceeds from this offering and could use them for purposes other
than those contemplated at the time of commencement of this offering.
CAPITALIZATION
The
following table sets forth our actual cash and cash equivalents and capitalization, each as of June 30, 2023, and as adjusted to give
effect to the issuance and sale of securities in this offering at an assumed public offering price of $0.4503 per Unit, which
is the last reported sale price for our common stock on the Nasdaq Capital Market on November 1, 2023, and an aggregate offering
amount of $4.35 million, after deducting the placement agent fees and estimated offering expenses payable by us.
The
as adjusted information set forth below is illustrative only and will be adjusted based on the actual public offering price and other
terms of this offering determined at pricing.
You
should read this information in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results
of Operations” and our condensed consolidated financial statements and related notes appearing in our Quarterly Report on Form
10-Q for the quarters ended June 30, 2023 and March 31, 2023, and our Annual Report on Form 10-K for the fiscal year ended December 31,
2022, which are incorporated by reference in this prospectus.
| |
As of June 30, 2023 | |
| |
(unaudited, amounts in thousands except for share and per share information) | |
| |
Actual | | |
As Adjusted(1) | |
Cash and cash equivalents | |
$ | 9,328 | | |
$ | 13,669 | |
Borrowings | |
| 107 | | |
| 107 | |
Operating lease liability | |
| 2,116 | | |
| 2,116 | |
Stockholders’ equity: | |
| | | |
| | |
Convertible preferred stock Series B, $0.01 par value, 130,000,000 total shares authorized inclusive of all series of preferred; 26 shares outstanding (actual and as adjusted) | |
| - | | |
| - | |
Convertible preferred stock Series C, $0.01 par value, 130,000,000 total shares authorized inclusive of all series of preferred; 50 shares outstanding (actual and as adjusted) | |
| - | | |
| - | |
Convertible preferred stock Series D, $0.01 par value, 130,000,000 total shares authorized inclusive of all series of preferred; 180 shares outstanding (actual and as adjusted) | |
| - | | |
| - | |
Common stock, $0.01 par value; 250,000,000 shares authorized; 4,208,027 shares issued and outstanding
(actual); 15,311,735 shares (as adjusted) | |
| 42 | | |
| 153 | |
Additional paid-in capital | |
| 278,973 | | |
| 283,203 | |
Accumulated deficit | |
| (265,203 | ) | |
| (265,203 | ) |
Total stockholders’ equity | |
| 13,812 | | |
| 18,153 | |
Total capitalization | |
| 16,035 | | |
| 20,376 | |
(1) |
A
$0.25 increase or decrease in the assumed combined public offering price of $0.4503 per Unit, which is the last reported
sale price of our common stock on Nasdaq on November 1, 2023, would increase or decrease, as appropriate, our as adjusted
cash and cash equivalents, additional paid-in capital and total stockholders’ equity by approximately $2.6 million,
assuming the number of Units offered by us as set forth on the cover page of this prospectus remains the same, and after deducting
the estimated placement agent fees and estimated offering expenses payable by us. Similarly, a 1,000,000 Unit increase or decrease
in the number of Units offered by us, based on the assumed combined public offering price of $0.4503 per Unit, would increase
or decrease our as adjusted cash and cash equivalents, and total stockholders’ equity by approximately $0.4 million,
after deducting the estimated placement agent fees and estimated offering expenses payable by us. |
Except
as otherwise noted, all information in this prospectus reflects and assumes (i) no sale of pre-funded warrants in this offering, which,
if sold, would reduce the number of shares of common stock that we are offering on a one-for-one basis and (ii) no exercise of the Class
E Warrants issued in this offering. The above discussion and table are based on 4,208,027 shares of common stock outstanding as of June
30, 2023 and excludes, as of such date:
● |
11,909
shares of our common stock issuable upon the exercise of stock options, with a weighted-average exercise price of $120 per share,
and vesting of restricted stock units; |
● |
1,244,754
shares of common stock issuable upon the exercise of outstanding warrants; |
● |
10,576
shares of our common stock issuable upon the conversion of 26 shares of series B convertible preferred stock outstanding; |
● |
338
shares of our common stock issuable upon the conversion of 50 shares of series C convertible preferred stock outstanding; |
● |
11,919
shares of our common stock issuable upon the conversion of 180 shares of series D convertible preferred stock outstanding; |
MARKET
PRICE AND DIVIDEND POLICY
Our
shares of common stock are currently quoted on The Nasdaq Capital Market under the symbol “SINT”. On November 1, 2023,
the last reported sales price of our common stock on Nasdaq was $0.4503.
Holders
of Record
As
of October 19, 2023, we had approximately 159 holders of record of our common stock. Because many of our shares of common
stock are held by brokers and other institutions on behalf of stockholders, this number is not indicative of the total number of stockholders
represented by these stockholders of record.
Dividends
We
have not declared or paid dividends to stockholders since inception and do not plan to pay cash dividends in the foreseeable future.
We currently intend to retain earnings, if any, to finance our growth.
Issuer
Purchases of Equity Securities
None
DESCRIPTION
OF SECURITIES
As
of the date of this prospectus, our Restated Certificate of Incorporation authorizes us to issue 250,000,000 shares of common stock,
par value $0.01 per share, and 130,000,000 shares of preferred stock, par value $0.01 per share. The following is a summary of the rights
of our common and preferred stock and some of the provisions of our Restated Certificate of Incorporation and Restated Bylaws, our outstanding
warrants, our registration rights agreements and the Delaware General Corporation Law. Because it is only a summary, it does not contain
all the information that may be important to you and is subject to and qualified in its entirety by our Restated Certificate of Incorporation
and our Restated Bylaws, a copy of each of which has been incorporated as an exhibit to the registration statement of which this prospectus
forms a part.
Our
Restated Certificate of Incorporation and our Restated Bylaws contain certain provisions that are intended to enhance the likelihood
of continuity and stability in the composition of the Board of Directors, which may have the effect of delaying, deferring or preventing
a future takeover or change in control of the Company unless such takeover or change in control is approved by our Board of Directors.
Common
Stock
As
of September 29, 2023, there were 4,208,151 shares of common stock outstanding. Each outstanding share of common stock entitles the holder
thereof to one vote per share on all matters. Our Restated Bylaws provide that any vacancy occurring in the Board of Directors may be
filled by the affirmative vote of a majority of the remaining directors. Holders of our common stock do not have preemptive rights to
purchase shares in any future issuance of our common stock. In the event of our liquidation, dissolution or winding up, holders of our
common stock are entitled to receive, ratably, the net assets available to stockholders after payment of all creditors.
Holders
of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders, and
do not have cumulative voting rights. Accordingly, the holders of a majority of the shares of our common stock entitled to vote can elect
all directors standing for election. Subject to preferences that may be applicable to any outstanding shares of preferred stock, holders
of our common stock are entitled to receive ratably such dividends, if any, as may be declared from time to time by our Board of Directors
out of funds legally available for dividend payments. All outstanding shares of our common stock are fully paid and nonassessable, and
any shares of our common stock to be sold pursuant to this prospectus will be fully paid and nonassessable. The holders of common stock
have no preferences or rights of conversion, exchange, pre-emption, or other subscription rights. There are no redemption or sinking
fund provisions applicable to our common stock. In the event of any liquidation, dissolution or winding-up of our affairs, holders of
our common stock will be entitled to share ratably in our assets that are remaining after payment or provision for payment of all of
our debts and obligations and after liquidation payments to holders of outstanding shares of preferred stock, if any.
The
transfer agent and registrar for our common stock is Equiniti Trust Company, LLC. The transfer agent and the registrar’s
address is 48 Wall Street, 22nd Floor, New York, NY 10005. Their telephone number is 1-347-554-1818.
Our common stock is listed on The Nasdaq Capital Market under the symbol “SINT”.
Description
of Securities Included in this Offering
We
are offering Units, each Unit consisting of one share of common stock and one Class E Warrant to purchase one share of common stock.
We
are offering to each purchaser whose purchase of shares of common stock in this offering would otherwise result in the purchaser, together
with its affiliates, beneficially owning more than 4.99% (or, at the election of the holder, 9.99%) of our outstanding shares of common
stock immediately following the consummation of this offering, the opportunity to purchase, if the purchaser so chooses, Units containing
pre-funded warrants, in lieu of shares of common stock that would otherwise result in the purchaser’s beneficial ownership exceeding
4.99% (or, at the election of the holder, 9.99%) of our outstanding shares of common stock. For each pre-funded warrant we sell (without
regard to any limitation on exercise set forth therein), the number of shares of common stock we are offering will be decreased on a
one-for-one basis. Because one Class E Warrant is being sold together in this offering with each share of common stock or, in the alternative,
each pre-funded warrant to purchase one share of common stock, the number of Class E Warrants sold in this offering will not change as
a result of a change in the mix of the shares of common stock and pre-funded warrants sold.
We
are also registering the shares of common stock issuable from time to time upon exercise of the Class E Warrants, and pre-funded warrants
included in the Units offered hereby. Our Units have no stand-alone rights and will not be certificated or issued as stand-alone securities.
The shares of common stock (or pre-funded warrants) and Class E Warrants comprising our Units are immediately separable and will be issued
separately in this offering.
The
following summary of certain terms and provisions of the pre-funded warrants and Class E Warrants offered hereby is not complete and
is subject to, and qualified in its entirety by the provisions of the form of pre-funded warrant, and the form of Class E Warrant, which
are filed as exhibits to the registration statement of which this prospectus forms a part. Prospective investors should carefully review
the terms and provisions set forth in the form of Class E Warrant and form of pre-funded warrant.
Exercisability.
The pre-funded warrants are exercisable at any time after their original issuance until they are exercised in full. The Class E Warrants
are exercisable at any time after their original issuance and at any time up to the date that is five years after their original
issuance. Each of the Class E Warrants and the pre-funded warrants will be exercisable, at the option of each holder, in whole or in
part by delivering to us a duly executed exercise notice and, at any time a registration statement registering the issuance of the shares
of common stock underlying the Class E Warrants, under the Securities Act of 1933, as amended (the “Securities Act”) is effective
and available for the issuance of such shares, by payment in full in immediately available funds for the number of shares of common stock
purchased upon such exercise. If a registration statement registering the issuance of the shares of common stock underlying the Class
E Warrants or pre-funded warrants under the Securities Act is not effective or available, the holder may, in its sole discretion, elect
to exercise the Class E Warrant or pre-funded warrant through a cashless exercise, in which case the holder would receive upon such exercise
the net number of shares of common stock determined according to the formula set forth in the warrant. We may be required to pay certain
amounts as liquidated damages as specified in the warrants in the event we do not deliver shares of common stock upon exercise of the
warrants within the time periods specified in the warrants. No fractional shares of common stock will be issued in connection with the
exercise of a warrant.
Exercise
Limitation. A holder will not have the right to exercise any portion of the pre-funded warrants, or Class E Warrants if the holder
(together with its affiliates) would beneficially own in excess of 4.99% (or, upon election by a holder prior to the issuance of any
warrants, 9.99%) of the number of shares of our common stock outstanding immediately after giving effect to the exercise, as such percentage
ownership is determined in accordance with the terms of the warrants. However, any holder may increase or decrease such percentage to
any other percentage not in excess of 9.99%, upon at least 61 days’ prior notice from the holder to us with respect to any increase
in such percentage.
Exercise
Price. The exercise price for the pre-funded warrants is $0.0001 per share. The exercise price per whole share of common stock purchasable
upon exercise of the Class E Warrants is $ per share. The exercise price and number of shares of common stock issuable on exercise are
subject to appropriate adjustments in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications
or similar events affecting our common stock.
Transferability.
Subject to applicable laws, the Class E Warrants and pre-funded warrants may be offered for sale, sold, transferred or assigned without
our consent.
Exchange
Listing. We do not intend to list the Class E Warrants or the pre-funded warrants offered in this offering on any securities exchange
or other trading market. Without an active trading market, the liquidity of these securities will be limited.
Warrant
Agent. The pre-funded warrants and Class E Warrants are expected to be issued in registered form under a warrant agreement between
Equiniti Trust Company, LLC, as warrant agent, and us. The Class E Warrants and the pre-funded warrants shall initially be represented
only by one or more global warrants deposited with the warrant agent, as custodian on behalf of The Depository Trust Company (DTC) and
registered in the name of Cede & Co., a nominee of DTC, or as otherwise directed by DTC.
Fundamental
Transactions. In the event of a fundamental transaction, as described in the Class E Warrants and pre-funded warrants and generally
including, with certain exceptions, any reorganization, recapitalization or reclassification of our common stock, the sale, transfer
or other disposition of all or substantially all of our properties or assets, our consolidation or merger with or into another person,
the acquisition of more than 50% of our outstanding shares of common stock, or any person or group becoming the beneficial owner of 50%
of the voting power represented by our outstanding shares of common stock, the holders of the Class E Warrants and pre-funded warrants
will be entitled to receive upon exercise of the warrants the kind and amount of securities, cash or other property that the holders
would have received had they exercised the warrants immediately prior to such fundamental transaction. In addition, in the event of a
fundamental transaction, we or the successor entity, at the request of a holder of Class E Warrants, will be obligated to purchase any
unexercised portion of such Class E Warrants in accordance with the terms of the Class E Warrants. Additionally,
as more fully described in the Class E Warrants, in the event of certain fundamental transactions, the holders of the Class E Warrants
will be entitled to receive consideration in an amount equal to the Black Scholes value of the Class E Warrants on the date of consummation
of such transaction.
Rights
as a Shareholder. Except as otherwise provided in the Class E Warrants or pre-funded warrants or by virtue of such holder’s
ownership of our shares of common stock, the holder of a Class E Warrant or pre-funded warrant does not have the rights or privileges
of a holder of our common stock, including any voting rights, until the holder exercises the warrant. Holders of Class E Warrants
and pre-funded warrants have the right to participate in dividends and certain distributions as specified in the warrant.
Governing
Law. The pre-funded warrants, Class E Warrants, and warrant agreement are governed by New York law.
Description
of Other Outstanding Securities of the Company
Preferred
Stock
Our
Board of Directors has the authority under our Restated Certificate of Incorporation, without further action by our stockholders, to
issue up to 130,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares to be included
in each such series, to fix the rights, preferences, privileges and restrictions of the shares of each wholly unissued series, including
dividend rights, conversion rights, voting rights, terms of redemption, liquidation preference and sinking fund terms, and to increase
or decrease the number of shares of any such series (but not below the number of shares of such series then outstanding).
Our
Board of Directors may authorize the issuance of preferred stock with voting or conversion rights that could have the effect of restricting
dividends on our common stock, diluting the voting power of our common stock, impairing the liquidation rights of our common stock or
otherwise adversely affecting the rights of holders of our common stock. The issuance of preferred stock, while providing flexibility
in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring
or preventing a change of control and may adversely affect the market price of our common stock.
Series
B Preferred Stock.
Our
Board of Directors designated 15,000 shares of our preferred stock as Series B Preferred Stock. As of September 29, 2023, there were
26 shares of Series B Preferred stock outstanding which are convertible into 10,576 shares of our common stock.
Conversion
Each
share of Series B Preferred Stock is convertible into shares of our common stock at any time at the holder’s option at the Conversion
Price described below. We may not effect any conversion of Series B Preferred Stock, with certain exceptions, to the extent that, after
giving effect to an attempted conversion, the holder of Series B Preferred Stock (together with such holder’s affiliates, and any
persons acting as a group together with such holder or any of such holder’s affiliates) would beneficially own a number of shares
of common stock in excess of 4.99% (or, at the election of the holder, 9.99%) of the shares of our common stock then outstanding after
giving effect to such conversion, referred to as the Preferred Stock Beneficial Ownership Limitation; provided, however, that upon notice
to us, the holder may increase or decrease the Preferred Stock Beneficial Ownership Limitation, provided that in no event may the Preferred
Stock Beneficial Ownership Limitation exceed 9.99% and any increase in the Preferred Stock Beneficial Ownership Limitation will not be
effective until 61 days following notice of such increase from the holder to us.
Subject
to certain ownership limitations as described below and certain equity conditions being met, if during any 30 consecutive trading days,
the volume weighted average price of our common stock exceeds $13,060.80 and the daily dollar trading volume during such period exceeds
$500,000 per trading day, we have the right to force the conversion of the Series B Preferred Stock into common stock.
Conversion
Price.
The
Series B Preferred Stock is convertible into shares of common stock by dividing the stated value of the Series B Preferred Stock ($1,100)
by $2.70 (the “Conversion Price”). The Conversion Price is subject to adjustment for stock splits, stock dividends, and distributions
of common stock or securities convertible, exercisable or exchangeable for common stock, subdivisions, combinations and reclassifications.
Subject
to certain exclusions contained in the Certificate of Designation, if we in any manner grant or sell any rights, warrants or options
and the lowest price per share for which one share of common stock is at any time issuable upon the exercise of any such option or upon
conversion, exercise or exchange of any Common Stock Equivalents (as defined in the Certificate of Designation) issuable upon exercise
of any such option, exercise or exchange of any Common Stock Equivalent issuable upon the exercise of such option or otherwise pursuant
to the terms thereof is less than the Conversion Price, then such share of common stock will be deemed to be outstanding and to have
been issued and sold by us at the time of the granting or sale of such option for such price per share. For purposes of this paragraph
only, the “lowest price per share for which one share of common stock is issuable upon the exercise of any such options or upon
conversion, exercise or exchange of any Common Stock Equivalent issuable upon exercise of any such option or otherwise pursuant to the
terms thereof” will be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or
receivable by us with respect to any one share of common stock upon the granting or sale of such option, upon exercise of such option
and upon conversion, exercise or exchange of any Common Stock Equivalents issuable upon exercise of such option or otherwise pursuant
to the terms thereof and (y) the lowest exercise price set forth in such option for which one share of common stock is issuable upon
the exercise of any such options or upon conversion, exercise or exchange of any Common Stock Equivalents issuable upon exercise of any
such option or otherwise pursuant to the terms thereof. Except as contemplated by the terms of the Certificate of Designation, no further
adjustment of the Conversion Price will be made upon the actual issuance of such shares of common stock or of such convertible securities
upon the exercise of such options or otherwise pursuant to the terms of or upon the actual issuance of such Common Stock Equivalents.
Subject
to certain exclusions contained in the Certificate of Designation, if we in any manner issue or sell any Common Stock Equivalents and
the lowest price per share for which one share of common stock is at any time issuable upon the conversion, exercise or exchange thereof
or otherwise pursuant to the terms thereof is less than the Conversion Price, then such share of common stock will be deemed to be outstanding
and to have been issued and sold by us at the time of the issuance or sale of such convertible securities for such price per share. For
purposes of this paragraph only, the “lowest price per share for which one share of common stock is issuable upon the conversion,
exercise or exchange thereof or otherwise pursuant to the terms thereof” will be equal to (1) the lower of (x) the sum
of the lowest amounts of consideration (if any) received or receivable by us with respect to one share of common stock upon the issuance
or sale of the Common Stock Equivalent and upon conversion, exercise or exchange of such convertible security or otherwise pursuant to
the terms thereof and (y) the lowest conversion price set forth in such convertible security for which one share of common stock is issuable
upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable
to the holder of such Common Stock Equivalent (or any other person) upon the issuance or sale of such Common Stock Equivalent plus the
value of any other consideration received or receivable by, or benefit conferred on, the holder of such Common Stock Equivalent (or any
other person). Except as contemplated by the terms of the Certificate of Designation, no further adjustment of the Conversion Price will
be made upon the actual issuance of such shares of common stock upon conversion, exercise or exchange of such Common Stock Equivalents
or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Common Stock Equivalents is made upon exercise of
any options for which adjustment of the Conversion Price has been or is to be made, except as contemplated by the terms of the Certificate
of Designation, no further adjustment of the Conversion Price will be made by reason of such issuance or sale.
If
the purchase or exercise price provided for in any options, the additional consideration, if any, payable upon the issue, conversion,
exercise or exchange of any convertible securities, or the rate at which any convertible securities are convertible into or exercisable
or exchangeable for shares of common stock increases or decreases at any time (other than proportional changes in conversion or exercise
prices, as applicable, in connection with stock dividends, splits or combination of outstanding common stock) the Conversion Price in
effect at the time of such increase or decrease will be adjusted to the Conversion Price which would have been in effect at such time
had such options or convertible securities provided for such increased or decreased purchase price, additional consideration or increased
or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. If the terms of any option or convertible
security that was outstanding as of the date of issuance of the Preferred Stock and related Warrants are increased or decreased in the
manner described in the immediately preceding sentence, then such option or convertible security and the shares of common stock deemed
issuable upon exercise, conversion or exchange thereof will be deemed to have been issued as of the date of such increase or decrease.
No adjustment will be made if such adjustment would result in an increase of the Conversion Price then in effect.
If
any option and/or convertible security and/or Adjustment Right is issued in connection with the issuance or sale or deemed issuance or
sale of any other securities of the Company (as determined by the holder of Preferred Stock, the “Primary Security”, and
such option and/or convertible security and/or Adjustment Right (as defined below), the “Secondary Securities” and together
with the Primary Security, each a “unit”), together comprising one integrated transaction, the aggregate consideration per
share of common stock with respect to such Primary Security will be deemed to be the lower of (x) the purchase price of such
unit, (y) if such Primary Security is an option and/or convertible security, the lowest price per share for which one share of common
stock is at any time issuable upon the exercise or conversion of the Primary Security in accordance with the paragraphs above and (z)
the lowest volume-weighted average price of the common stock on any trading day during the four trading day period immediately following
the public announcement of such dilutive issuance. If any shares of common stock, options or convertible securities are issued or sold
or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration
received by us therefor. If any shares of common stock, options or convertible securities are issued or sold for a consideration other
than cash, the amount of such consideration received by us will be the fair value of such consideration, except where such consideration
consists of publicly traded securities, in which case the amount of consideration received by us for such securities will be the arithmetic
average of the volume-weighted average prices of such security for each of the five (5) trading days immediately preceding the date of
receipt. If any shares of common stock, options or convertible securities are issued to the owners of the non-surviving entity in connection
with any merger in which we are the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such
portion of the net assets and business of the non-surviving entity as is attributable to such shares of common stock, options or convertible
securities (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined
jointly by us and the holder. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring
valuation (the “Valuation Event”), the fair value of such consideration will be determined within five trading days after
the tenth day following such Valuation Event by an independent, reputable appraiser jointly selected by us and the holder.
“Adjustment
Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance or sale
(or deemed issuance or sale in accordance with the paragraph above) of shares of common stock that could result in a decrease in the
net consideration received by us in connection with, or with respect to, such securities (including, without limitation, any cash settlement
rights, cash adjustment or other similar rights).
In
addition, holders of Series B Preferred Stock may be eligible to elect an alternative price in the event we issue certain variable price
securities.
Liquidation;
Dividends; Repurchases.
In
the event of a liquidation, the holders of Series B Preferred Stock are entitled to participate on an as-converted-to-common stock basis
with holders of the common stock in any distribution of assets of the Company to the holders of the common stock. Additionally, we will
not pay any dividends on shares of common stock (other than dividends in the form of common stock) unless and until such time as we pay
dividends on each Series B Preferred Share on an as-converted basis. Other than as set forth in the previous sentence, no other dividends
will be paid on Series B Preferred Stock and we will pay no dividends (other than dividends in the form of common stock) on shares of
common stock unless we simultaneously comply with the previous sentence.
Redemption
Right.
We
hold an option to redeem some or all of the Series B Preferred Stock at any time after the six-month anniversary of its issuance date
at a 25% premium to the stated value of the Series B Preferred Stock subject to redemption, upon 30 days prior written notice to the
holder of the Series B Preferred Stock. The Series B Preferred Stock would be redeemed by us for cash.
Fundamental
Transactions.
In
the event of any fundamental transaction, generally including any merger with or into another entity, sale of all or substantially all
of our assets, tender offer or exchange offer, or reclassification of our common stock, then upon any subsequent conversion of the Series
B Preferred Stock, the holder will have the right to receive as alternative consideration, for each share of our common stock that would
have been issuable upon such conversion immediately prior to the occurrence of such fundamental transaction, the number of shares of
common stock of the successor or acquiring corporation or of our company, if it is the surviving corporation, and any additional consideration
receivable upon or as a result of such transaction by a holder of the number of shares of our common stock for which the Series B Preferred
Stock is convertible immediately prior to such event.
Voting
Rights.
With
certain exceptions, the holders of shares of Series B Preferred Stock have no voting rights. However, as long as any shares of Series
B Preferred Stock remain outstanding, we may not, without the affirmative vote of holders of a majority of the then-outstanding Series
B Preferred Stock, (a) alter or change adversely the powers, preferences or rights given to the Series B Preferred Stock or alter or
amend the Certificate of Designation, (b) increase the number of authorized shares of Series B Preferred Stock, (c) amend our Certificate
of Incorporation or other charter documents in any manner that adversely affects any rights of holders of Series B Preferred Stock disproportionately
to the rights of holders of our other capital stock, or (d) enter into any agreement with respect to any of the foregoing.
Jurisdiction
and Waiver of Trial by Jury
Other
than with respect to suits, actions or proceedings arising under the federal securities laws, the Certificate of Designation provides
for investors to consent to exclusive jurisdiction to courts located in New York, New York and provides for a waiver of the right to
a trial by jury. It also provides that disputes are governed by Delaware law.
Series
C Preferred Stock.
Our
Board of Directors designated 9,440 shares of our preferred stock as Series C Preferred Stock. As of September 29, 2023, there were 50
shares of Series C Preferred stock outstanding which are convertible into 338 shares of our common stock.
Conversion.
Each share of Series C Preferred Stock will be convertible at our option at any time on or after the first anniversary of the expiration
of the Rights Offering or at the option of the holder at any time, into the number of shares of our common stock determined by dividing
the $1,000 stated value per share of the Series C Preferred Stock by a conversion price of $148.14 per share. In addition, the conversion
price per share is subject to adjustment for stock dividends, distributions, subdivisions, combinations or reclassifications. Subject
to limited exceptions, a holder of the Series C Preferred Stock will not have the right to convert any portion of the Series C Preferred
Stock to the extent that, after giving effect to the conversion, the holder, together with its affiliates, would beneficially own in
excess of 4.99% of the number of shares of our common stock outstanding immediately after giving effect to its conversion. A holder of
the Series C Preferred Stock, upon notice to us, may increase or decrease the beneficial ownership limitation provisions of such holder’s
Series C Preferred Stock, provided that in no event shall the limitation exceed 9.99% of the number of shares of our common stock outstanding
immediately after giving effect to its conversion. In the event that a conversion is effected at our option, we will exercise such option
to convert shares of Series C Preferred Stock on a pro rata basis among all of the holders based on such holders’ shares of Series
C Preferred Stock.
Fundamental
Transactions. In the event we effect certain mergers, consolidations, sales of substantially all of our assets, tender or exchange
offers, reclassifications or share exchanges in which our common stock is effectively converted into or exchanged for other securities,
cash or property, we consummate a business combination in which another person acquires 50% of the outstanding shares of our common stock,
or any person or group becomes the beneficial owner of 50% of the aggregate ordinary voting power represented by our issued and outstanding
common stock, then, upon any subsequent conversion of the Series C Preferred Stock, the holders of the Series C Preferred Stock will
have the right to receive any shares of the acquiring corporation or other consideration it would have been entitled to receive if it
had been a holder of the number of shares of common stock then issuable upon conversion in full of the Series C Preferred Stock.
Dividends.
Holders of Series C Preferred Stock shall be entitled to receive dividends (on an as-if-converted-to-common-stock basis) in the same
form as dividends actually paid on shares of the common stock when, as and if such dividends are paid on shares of common stock.
Voting
Rights. Except as otherwise provided in the certificate of designation or as otherwise required by law, the Preferred Stock has no
voting rights.
Liquidation
Preference. Upon our liquidation, dissolution or winding-up, whether voluntary or involuntary, holders of Series C Preferred
Stock will be entitled to receive out of our assets, whether capital or surplus, the same amount that a holder of common stock would
receive if the Series C Preferred Stock were fully converted (disregarding for such purpose any conversion limitations under the certificate
of designation) to common stock, which amounts shall be paid pari passu with all holders of common stock.
Redemption
Rights. We are not obligated to redeem or repurchase any shares of Series C Preferred Stock. Shares of Series C Preferred Stock are
not otherwise entitled to any redemption rights, or mandatory sinking fund or analogous provisions.
Series
D Preferred Stock
Our
board of directors designated 4,656 shares of our preferred stock as Series D Preferred Stock. As of September 29, 2023, there were 180
shares of Series D Preferred stock outstanding which are convertible into 11,919 shares of our common stock.
Conversion.
Each share of Series D Preferred Stock is convertible at the option of the holder at any time, into the number of shares of our common
stock determined by dividing the $1,000 stated value per share of the Preferred Stock by a conversion price of $15.102 per share. In
addition, the conversion price per share is subject to adjustment for stock dividends, distributions, subdivisions, combinations or reclassifications.
Subject to limited exceptions, a holder of the Preferred Stock will not have the right to convert any portion of the Series D Preferred
Stock to the extent that, after giving effect to the conversion, the holder, together with its affiliates, would beneficially own in
excess of 4.99% of the number of shares of our common stock outstanding immediately after giving effect to its conversion. A holder of
the Series D Preferred Stock, upon notice to us, may increase or decrease the beneficial ownership limitation provisions of such holder’s
Series D Preferred Stock, provided that in no event shall the limitation exceed 9.99% of the number of shares of our common stock outstanding
immediately after giving effect to its conversion.
Fundamental
Transactions. In the event we effect certain mergers, consolidations, sales of substantially all of our assets, tender or exchange
offers, reclassifications or share exchanges in which our common stock is effectively converted into or exchanged for other securities,
cash or property, we consummate a business combination in which another person acquires 50% of the outstanding shares of our common stock,
or any person or group becomes the beneficial owner of 50% of the aggregate ordinary voting power represented by our issued and outstanding
common stock, then, upon any subsequent conversion of the Series D Preferred Stock, the holders of the Series D Preferred Stock will
have the right to receive any shares of the acquiring corporation or other consideration it would have been entitled to receive if it
had been a holder of the number of shares of common stock then issuable upon conversion in full of the Series D Preferred Stock.
Dividends.
Holders of Preferred Stock shall be entitled to receive dividends (on an as-if-converted-to-common-stock basis) in the same form
as dividends actually paid on shares of the common stock when, as and if such dividends are paid on shares of common stock.
Voting
Rights. Except as otherwise provided in the certificate of designation or as otherwise required by law, the Series D Preferred Stock
has no voting rights.
Liquidation
Preference. Upon our liquidation, dissolution or winding-up, whether voluntary or involuntary, holders of Series D Preferred
Stock will be entitled to receive out of our assets, whether capital or surplus, the same amount that a holder of common stock would
receive if the Series D Preferred Stock were fully converted (disregarding for such purpose any conversion limitations under the certificate
of designation) to common stock, which amounts shall be paid pari passu with all holders of common stock.
Redemption
Rights. We are not obligated to redeem or repurchase any shares of Series D Preferred Stock. Shares of Series D Preferred Stock are
not otherwise entitled to any redemption rights, or mandatory sinking fund or analogous provisions.
Future
Preferred Stock.
Our
Board of Directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each series
that we sell under this prospectus and applicable prospectus supplements in the certificate of designation relating to that series. We
will file as an exhibit to the registration statement of which this prospectus is a part, or incorporate by reference into the registration
statement of which this prospectus is a part the form of any certificate of designation that describes the terms of the series of preferred
stock we are offering before the issuance of the related series of preferred stock. This description will include:
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the
title and stated value; |
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the
number of shares we are offering; |
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the
liquidation preference per share; |
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the
purchase price per share; |
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the
dividend rate per share, dividend period and payment dates and method of calculation for dividends; |
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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our
right, if any, to defer payment of dividends and the maximum length of any such deferral period; |
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the
procedures for any auction and remarketing, if any; |
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the
provisions for a sinking fund, if any; |
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the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase
rights; |
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any
listing of the preferred stock on any securities exchange or market; |
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whether
the preferred stock will be convertible into our common stock or other securities of ours, including warrants, and, if applicable,
the conversion period, the conversion price, or how it will be calculated, and under what circumstances it may be adjusted; |
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voting
rights, if any, of the preferred stock; |
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preemption
rights, if any; |
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restrictions
on transfer, sale or other assignment, if any; |
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a
discussion of any material or special United States federal income tax considerations applicable to the preferred stock; |
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the
relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our
affairs; |
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any
limitations on issuances of any class or series of preferred stock ranking senior to or on a parity with the series of preferred
stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
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any
other specific terms, rights, preferences, privileges, qualifications or restrictions of the preferred stock. |
When
we issue shares of preferred stock under this prospectus, the shares will be fully paid and nonassessable and will not have, or be subject
to, any preemptive or similar rights.
The
General Corporation Law of the State of Delaware, the state of our incorporation, provides that the holders of preferred stock will have
the right to vote separately as a class on any proposal involving fundamental changes in the rights of holders of that preferred stock.
This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
Warrants
As
of September 29, 2023, there were 1,244,754 common stock purchase warrants outstanding, which expire between February 2025 and February
2028. Each of these warrants entitles the holder to purchase one share of common stock at prices ranging between $2.70 and $150 per share.
Certain of these warrants has a net exercise provision under which its holder may, in lieu of payment of the exercise price in cash,
surrender the warrant and receive a net amount of shares based on the fair market value of our common stock at the time of exercise of
the warrant after deduction of the aggregate exercise price. Additionally, certain of these warrants entitle a holder to also effect
an “alternative cashless exercise” wherein the holder may surrender a certain number of warrants in return for a lesser number
of shares of our common stock on a cashless basis. Each of these warrants also contains provisions for the adjustment of the exercise
price and the aggregate number of shares issuable upon the exercise of the warrant in the event of dividends, share splits, reorganizations
and reclassifications and consolidations. Certain of these warrants contain a provision requiring a reduction to the exercise price in
the event we issue common stock, or securities convertible into or exercisable for common stock, at a price per share lower than the
warrant exercise price.
The
holders of certain of these warrants have registration rights, as described in greater detail below.
February
2023 Offering Warrants
On
February 7, 2023, we issued a Class C Common Stock Purchase Warrant to purchase up to 2,150,000 shares of Common Stock (the “Class
C Warrants”) and a Class D Common Stock Purchase Warrant to purchase up to 1,075,000 shares of Common Stock (the “Class D
Warrants”). The Class C and Class D Warrants are exercisable at a price of $5.60 per share. The Class C Warrants will expire five
years from the date of issuance and the Class D Warrants will expire three years from the date of issuance. In addition, a holder may
also effect an “alternative cashless exercise” wherein the aggregate number of shares of common stock issuable in such alternative
cashless exercise shall equal the product of (x) the aggregate number of shares of common stock that would be issuable upon exercise
of the Class C Warrant or Class D Warrant in accordance with the terms of such warrant if such exercise were by means of a cash exercise
rather than a cashless exercise and (y) 0.40 with respect to the Class C Warrant or 0.80 with respect to the Class D Warrant.
The
following summary of certain terms and provisions of the Class C Warrants, and Class D Warrants is not complete and is subject to, and
qualified in its entirety by the provisions of the form of Class C Warrant, and the form of Class D Warrant, which are filed as exhibits
to this registration statement.
Exercisability.
The Class C Warrants are exercisable at any time after their original issuance and at any time up to the date that is five years after
their original issuance. The Class D Warrants are exercisable at any time after their original issuance and at any time up to the date
that is three years after their original issuance. Each of the Class C Warrants, Class D Warrants, are exercisable, at the option of
each holder, in whole or in part by delivering to us a duly executed exercise notice and, at any time a registration statement registering
the issuance of the shares of common stock underlying the Class C Warrants or Class D Warrants, under the Securities Act of 1933, as
amended (the “Securities Act”) is effective and available for the issuance of such shares, by payment in full in immediately
available funds for the number of shares of common stock purchased upon such exercise. If a registration statement registering the issuance
of the shares of common stock underlying the Class C Warrants, Class D Warrants, under the Securities Act is not effective or available,
the holder may, in its sole discretion, elect to exercise the Class C Warrant or Class D Warrant, through a cashless exercise, in which
case the holder would receive upon such exercise the net number of shares of common stock determined according to the formula set forth
in the warrant. We may be required to pay certain amounts as liquidated damages as specified in the warrants in the event we do not deliver
shares of common stock upon exercise of the warrants within the time periods specified in the warrants. In addition, a holder may also
effect an “alternative cashless exercise.” In such event, the aggregate number of shares of common stock issuable in such
alternative cashless exercise shall equal the product of (x) the aggregate number of shares of common stock that would be issuable upon
exercise of the Class C Warrant or Class D Warrant in accordance with the terms of such warrant if such exercise were by means of a cash
exercise rather than a cashless exercise and (y) 0.40 with respect to the Class C Warrant or 0.80 with respect to the Class D Warrant.
No fractional shares of common stock will be issued in connection with the exercise of a Class C Warrant or Class D Warrant. With respect
to any alternative cashless exercise, fractional shares will be rounded down to the nearest whole share.
Fractional
Shares. No fractional shares of common stock will be issued in connection with the exercise of a warrant. Other than as described
above with respect to alternative cashless exercises, in lieu of fractional shares, we will, at our election, either pay the holder an
amount in cash equal to the fractional amount multiplied by the exercise price or round up to the next whole share.
Exercise
Limitation. A holder will not have the right to exercise any portion of the Class C Warrants, or Class D Warrants if the holder (together
with its affiliates) would beneficially own in excess of 4.99% (or, upon election by a holder prior to the issuance of any warrants,
9.99%) of the number of shares of our common stock outstanding immediately after giving effect to the exercise, as such percentage ownership
is determined in accordance with the terms of the warrants. However, any holder may increase or decrease such percentage to any other
percentage not in excess of 9.99%, upon at least 61 days’ prior notice from the holder to us with respect to any increase in such
percentage.
Exercise
Price. The exercise price per whole share of common stock purchasable upon exercise of the Class C Warrants and the Class D Warrants
is $5.60 per share. The exercise price and number of shares of common stock issuable on exercise are subject to appropriate adjustments
in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar events affecting
our common stock.
Transferability.
Subject to applicable laws, the Class C Warrants and Class D Warrants may be offered for sale, sold, transferred or assigned without
our consent.
Exchange
Listing. We do not intend to list the Class C Warrants or the Class D Warrants on any securities exchange or other trading market.
Without an active trading market, the liquidity of these securities will be limited.
Warrant
Agent. The Class C Warrants and Class D Warrants are issued in registered form under a warrant agreement between American Stock Transfer
& Trust Company, LLC, as warrant agent, and us. The Class C Warrants and Class D Warrants shall initially be represented only by
one or more global warrants deposited with the warrant agent, as custodian on behalf of The Depository Trust Company (DTC) and registered
in the name of Cede & Co., a nominee of DTC, or as otherwise directed by DTC.
Fundamental
Transactions. In the event of a fundamental transaction, and generally including, with certain exceptions, any reorganization, recapitalization
or reclassification of our common stock, the sale, transfer or other disposition of all or substantially all of our properties or assets,
our consolidation or merger with or into another person, the acquisition of more than 50% of our outstanding shares of common stock,
or any person or group becoming the beneficial owner of 50% of the voting power represented by our outstanding shares of common stock,
the holders of the Class C Warrants and Class D Warrants will be entitled to receive upon exercise of the warrants the kind and amount
of securities, cash or other property that the holders would have received had they exercised the warrants immediately prior to such
fundamental transaction. In addition, in the event of a fundamental transaction, we or the successor entity, at the request of a holder
of Class C Warrants or Class D Warrants, will be obligated to purchase any unexercised portion of such Class C Warrants or Class D Warrants
in accordance with the terms of the warrants. Additionally, as more fully described in the warrants, in the event of certain fundamental
transactions, the holders of the warrants will be entitled to receive consideration in an amount equal to the Black Scholes value of
the warrants on the date of consummation of such transaction.
Rights
as a Shareholder. Except as otherwise provided in the Class C Warrants and Class D Warrants or by virtue of such holder’s ownership
of our shares of common stock, the holder of a Class C Warrant or Class D Warrant does not have the rights or privileges of a holder
of our common stock, including any voting rights, until the holder exercises the warrant.
Governing
Law. The Class C Warrants, Class D Warrants, and warrant agreement are governed by New York law.
Maxim
and Ascendiant February 2023 Warrants
In
connection with the February 2023 Offering, we issued (i) to Maxim, as our sole placement agent for the 2023 Offering, 73,100 warrants
to purchase shares of our common stock and (ii) to Ascendiant, as a financial advisor to us in the February 2023 Offering, 12,900 warrants
to purchase shares of our common stock (collectively, the “Placement Agent Warrants”). The Placement Agent Warrants will
expire on February 7, 2028. The Placement Agent Warrants are exercisable at a price of $6.16 per share, subject to adjustment for stock
dividends, distributions, subdivisions, combinations, or reclassifications, and for certain dilutive issuances. Subject to limited exceptions,
a holder of the Placement Agent Warrants will not have the right to exercise any portion of the Placement Agent Warrants to the extent
that, after giving effect to the exercise, the holder, together with its affiliates, and any other person acting as a group together
with the holder or any of its affiliates, would beneficially own in excess of 4.99% of the number of shares of our common stock outstanding
immediately after giving effect to its exercise. The holder, upon notice to us, may increase or decrease the beneficial ownership limitation
provisions of the Placement Agent Warrants, provided that in no event shall the limitation exceed 9.99% of the number of shares of our
common stock outstanding immediately after giving effect to the exercise of the Placement Agent Warrants. The Placement Agent Warrants
may be exercised as to all or a lesser number of shares of our common stock and contain certain demand registration rights and unlimited
“piggyback” registration rights for a period of five years after February 7, 2023, at our expense. We relied on the exemption
from registration available under Section 4(a)(2) of the Securities Act in connection with the issuance of the Dealer Manager Warrants
to Maxim and Ascendiant.
The
foregoing description of the Placement Agent Warrants is not complete. For the complete terms of the Placement Agent Warrants, you should
refer to the form of Placement Agent Warrant filed as an exhibit to this registration statement.
October
2022 Rights Offering Warrants
On
October 17, 2022, we issued 308,321 common stock warrants designated as our “Class A” warrants and 308,321 common stock warrants
designated as our “Class B” warrants (collectively the “October 2022 Warrants”) in a rights offering to our stockholders
(the “October 2022 Rights Offering”). Each of these warrants entitles the holder to purchase one share of common stock at
an exercise price of $2.70 per share. The Class A Warrants and Class B Warrants have the same terms, except that the Class A Warrants
expire five years from the date of issuance and the Class B Warrants expire three years from the date of issuance. The material terms
and provisions of the October 2022 Warrants are summarized below. This summary of the October 2022 Warrants is not complete. For the
complete terms of the October 2022 Warrants, you should refer to the form of October 2022 Warrant filed as an exhibit to the registration
statement of which this prospectus forms a part.
Pursuant
to a warrant agency agreement between us and American Stock Transfer & Trust Company, LLC, as warrant agent, the October 2022 Warrants
were issued in book-entry form and are represented only by one or more global warrants deposited with the warrant agent, as custodian
on behalf of The Depository Trust Company, or DTC, and registered in the name of Cede & Co., a nominee of DTC, or as otherwise directed
by DTC.
Exercisability
Each
Class A Warrant is exercisable at any time and will expire five years from the date of issuance. Each Class B Warrant is exercisable
at any time and will expire three years from the date of issuance. The Warrants are exercisable, at the option of each holder, in whole
or in part by delivering to us a duly executed exercise notice and payment in full for the number of shares of our common stock purchased
upon such exercise, except in the case of a cashless exercise as discussed below. The number of shares of common stock issuable upon
exercise of the Warrants is subject to adjustment in certain circumstances, including a stock split of, stock dividend on, or a subdivision,
combination or recapitalization of the common stock. If we effect a merger, consolidation, sale of substantially all of our assets, or
other similar transaction, then, upon any subsequent exercise of a Warrants, the Warrant holder will have the right to receive any shares
of the acquiring corporation or other consideration it would have been entitled to receive if it had been a holder of the number of shares
of common stock then issuable upon exercise in full of the Warrant.
Cashless
Exercise
If
at any time there is no effective registration statement registering, or the prospectus contained therein is not available for issuance
of, the shares issuable upon exercise of the warrant, the holder may exercise the warrant on a cashless basis. When exercised on a cashless
basis, a portion of the warrant is cancelled in payment of the purchase price payable in respect of the number of shares of our common
stock purchasable upon such exercise.
Exercise
Price
Each
warrant represents the right to purchase one share of common stock at an exercise price equal to the Conversion Price. In addition, the
exercise price per share is subject to adjustment for stock dividends, distributions, subdivisions, combinations, or reclassifications,
and for certain dilutive issuances. The exercise price is also subject to adjustment in the event that we sell, issue, or grant any option
to purchase, or sell or issue any right to reprice, or otherwise dispose of or issue (or enter into any agreement relating to the offer,
sale, grant or any option to purchase or other disposition) any common stock or convertible securities (as defined in the warrants),
at an effective price per share less than the exercise price then in effect. In addition, if at any time there occurs a stock dividend,
distribution, subdivision, combination, or reclassification and the volume weighted average price of the shares of common stock for the
five trading days following such event is less than the exercise price then in effect (after giving effect to the adjustment of the exercise
price pursuant to such event under the terms of the Warrants), then on the fifth trading day following such event, the exercise price
shall be reduced to the volume weighted average price of the shares of common stock for the five trading days following such event.
Subject
to limited exceptions, a holder of warrants will not have the right to exercise any portion of the warrant to the extent that, after
giving effect to the exercise, the holder, together with its affiliates, and any other person acting as a group together with the holder
or any of its affiliates, would beneficially own in excess of 4.99% of the number of shares of our common stock outstanding immediately
after giving effect to its exercise. The holder, upon notice to us, may increase or decrease the beneficial ownership limitation provisions
of the warrant, provided that in no event shall the limitation exceed 9.99% of the number of shares of our common stock outstanding immediately
after giving effect to the exercise of the warrant.
Transferability
Subject
to applicable laws and restrictions, a holder may transfer a warrant upon surrender of the warrant to us with a completed and signed
assignment in the form attached to the warrant. The transferring holder will be responsible for any tax that liability that may arise
as a result of the transfer.
No
Market
There
is no public trading market for the October 2022 Warrants and they will not be listed for trading on Nasdaq or any other securities exchange
or market.
Rights
as Stockholder
Except
as set forth in the October 2022 Warrants, the holder of an October 2022 Warrant, solely in such holder’s capacity as a holder
of such warrant, will not be entitled to vote, to receive dividends, or to any of the other rights of our stockholders.
Amendments
and Waivers
The
provisions of each October 2022 Warrant may be modified or amended or the provisions thereof waived with the written consent of us and
the holder.
The
October 2022 Warrants were issued pursuant to a warrant agent agreement by and between us and America Stock Transfer & Trust Company,
the warrant agent.
Maxim
and Ascendiant October 2022 Warrants
In
connection with the October 2022 Rights Offering, we issued (i) to Maxim, as the dealer-manager in the October 2022 Rights Offering,
10,483 warrants to purchase shares of our common stock and (ii) to Ascendiant, as a financial advisor to us in the October 2022 Rights
Offering, 1,850 warrants to purchase shares of the Company’s common stock (collectively, the “Dealer Manager Warrants”).
The Dealer Manager Warrants are non-exercisable for 6 months from October 17, 2022 and will expire on September 23, 2027. The Dealer
Manager Warrants will be exercisable at a price of $16.61 per share, subject to adjustment for stock dividends, distributions, subdivisions,
combinations, or reclassifications, and for certain dilutive issuances. Subject to limited exceptions, a holder of the Dealer Manager
Warrants will not have the right to exercise any portion of the Dealer Manager Warrants to the extent that, after giving effect to the
exercise, the holder, together with its affiliates, and any other person acting as a group together with the holder or any of its affiliates,
would beneficially own in excess of 4.99% of the number of shares of our common stock outstanding immediately after giving effect to
its exercise. The holder, upon notice to us, may increase or decrease the beneficial ownership limitation provisions of the Dealer Manager
Warrants, provided that in no event shall the limitation exceed 9.99% of the number of shares of our common stock outstanding immediately
after giving effect to the exercise of the Dealer Manager Warrants. In addition, the Dealer Manager Warrants shall not be redeemable
and may not be sold, transferred, assigned, pledged or hypothecated or be the subject of any hedging, short sale, derivative, put, or
call transaction for a period of 180 days following September 23, 2022, except that they may be assigned, in whole or in part, to any
officer or partner of Maxim (or to Ascendiant). The Dealer Manager Warrants may be exercised as to all or a lesser number of shares of
our common stock, and contain unlimited “piggyback” registration rights for a period of five years after September 23, 2022,
at the Company’s expense. We relied on the exemption from registration available under Section 4(a)(2) of the Securities Act in
connection with the issuance of the Dealer Manager Warrants to Maxim and Ascendiant.
The
foregoing description of the Dealer Manager Warrants is not complete. For the complete terms of the Dealer Manager Warrants, you should
refer to the form of Dealer Manager Warrant filed as an exhibit to the registration statement of which this prospectus forms a part.
February
2020 Rights Offering Warrants
On
February 6, 2020, we issued 63,720 common stock warrants (the “February 2020 Warrants”) in a rights offering to our stockholders.
The material terms and provisions of the February 2020 Warrants are summarized below. This summary of the February 2020 Warrants is not
complete. For the complete terms of the February 2020 Warrants, you should refer to the form of February 2020 Warrant filed as an exhibit
to the registration statement of which this prospectus forms a part.
Pursuant
to a warrant agency agreement between us and American Stock Transfer & Trust Company, LLC, as warrant agent, the February 2020 Warrants
were issued in book-entry form and are represented only by one or more global warrants deposited with the warrant agent, as custodian
on behalf of The Depository Trust Company, or DTC, and registered in the name of Cede & Co., a nominee of DTC, or as otherwise directed
by DTC.
Exercisability.
Each February 2020 Warrant became exercisable at the time of issuance and will expire five years from their issuance date. The February
2020 Warrants are exercisable, at the option of each holder, in whole or in part by delivering to us a duly executed exercise notice
and payment in full for the number of shares of our common stock purchased upon such exercise, except in the case of a cashless exercise
as discussed below. The number of shares of common stock issuable upon exercise of the February 2020 Warrants is subject to adjustment
in certain circumstances, including a stock split of, stock dividend on, or a subdivision, combination or recapitalization of the common
stock. If we effect a merger, consolidation, sale of substantially all of our assets, or other similar transaction, then, upon any subsequent
exercise of a February 2020 Warrant, the February 2020 Warrant holder will have the right to receive any shares of the acquiring corporation
or other consideration it would have been entitled to receive if it had been a holder of the number of shares of common stock then issuable
upon exercise in full of the February 2020 Warrant.
Cashless
Exercise. After the earlier of (a) the date that is 30 days after the initial exercise date of the February 2020 Warrants or (b)
such trading day that the aggregate volume of shares of common stock sold since the expiration of the Offering exceeds three times the
number of shares of common stock and common stock equivalents sold in the Offering, the holder shall be permitted to exercise the February
2020 Warrant, on a cashless basis, regardless of the then applicable trading price of the common stock on Nasdaq, for an aggregate number
of shares of common stock equal to the product of (i) the aggregate number of shares of common stock that would be issuable upon exercise
of the Warrant if such exercise were by means of a cash exercise and (ii) 0.70.
Additionally,
if at any time there is no effective registration statement registering, or the prospectus contained therein is not available for issuance
of, the shares issuable upon exercise of the warrant, the holder may exercise the warrant on a cashless basis, in which a portion of
the warrant is cancelled in payment of the purchase price payable in respect of the number of shares of our common stock purchasable
upon such exercise.
Exercise
Price. Each February 2020 Warrant represents the right to purchase one share of common stock at an exercise price of $150 per share.
In addition, the exercise price per share is subject to adjustment for stock dividends, distributions, subdivisions, combinations, or
reclassifications, and for certain dilutive issuances. Subject to limited exceptions, a holder of warrants will not have the right to
exercise any portion of the warrant to the extent that, after giving effect to the exercise, the holder, together with its affiliates,
and any other person acting as a group together with the holder or any of its affiliates, would beneficially own in excess of 4.99% of
the number of shares of our common stock outstanding immediately after giving effect to its exercise. The holder, upon notice to the
Company, may increase or decrease the beneficial ownership limitation provisions of the warrant, provided that in no event shall the
limitation exceed 9.99% of the number of shares of our common stock outstanding immediately after giving effect to the exercise of the
warrant.
Fundamental
Transactions. In the event we consummate a merger or consolidation with or into another person or other reorganization event in which
our shares of common stock are converted or exchanged for securities, cash or other property, or we sell, lease, license, assign, transfer,
convey or otherwise dispose of all or substantially all of our assets or we or another person acquires 50% or more of our outstanding
shares of common stock, referred to as a fundamental transaction, then following such event, the holders will have the option, which
may be exercised within 30 days after the consummation of the fundamental transaction, to require us or our successor entity purchase
the February 2020 Warrant from the holder by paying to the holder an amount of cash equal to the Black Scholes value of the remaining
unexercised portion of the warrant on the date of the consummation of the fundamental transaction. However, if the fundamental transaction
is not within our control, including not approved by our Board of Directors, the holder will only be entitled to receive from us or any
successor entity, as of the date of consummation of such fundamental transaction, the same type or form of consideration (and in the
same proportion), at the Black Scholes value of the unexercised portion of the February 2020 Warrant, that is being offered and paid
to the holders of our common stock in connection with the fundamental transaction, whether that consideration be in the form of cash,
stock or any combination thereof, or whether the holders of common stock are given the choice to receive from among alternative forms
of consideration in connection with the fundamental transaction.
Transferability.
Subject to applicable laws and restrictions, a holder may transfer a warrant upon surrender of the warrant to us with a completed
and signed assignment in the form attached to the warrant. The transferring holder will be responsible for any tax that liability that
may arise as a result of the transfer.
No
Market. There is no public trading market for the February 2020 Warrants, and they are not listed for trading on Nasdaq or any other
securities exchange or market.
Rights
as Stockholder. Except as set forth in the February 2020 Warrants, the holder of a warrant, solely in such holder’s capacity
as a holder of a February 2020 Warrant, will not be entitled to vote, to receive dividends, or to any of the other rights of our stockholders.
Redemption
Rights. We may redeem the warrants for $0.01 per warrant if our common stock closes above $8.00 per share for ten consecutive trading
days, provided that we may not do so prior to the first anniversary of expiration of the Rights Offering.
Amendments
and Waivers. The provisions of each February 2020 Warrant may be modified or amended or the provisions thereof waived with the written
consent of us and the holder.
Maxim
and Ascendiant February 2020 Warrants
Also
on February 6, 2020, in connection with a rights offering, we issued 2,039 common stock warrants (the “Maxim Warrants”) to
Maxim, as the dealer manager in such rights offering, and 510 common stock warrants (the “Ascendiant Warrants”) to Ascendiant,
as a financial advisor to us in such rights offering. The Maxim Warrants and Ascendiant Warrants have the same material terms as the
February 2020 Warrants, except as described below.
The
Maxim Warrants and Ascendiant Warrants became exercisable 6 months from February 6, 2020 and will expire on January 17, 2025. The Maxim
Warrants and Ascendiant Warrants are exercisable at a price of $162.95 per share, subject to adjustment for stock dividends, distributions,
subdivisions, combinations, or reclassifications, and for certain dilutive issuances. Subject to limited exceptions, a holder of the
Maxim Warrants and Ascendiant Warrants will not have the right to exercise any portion of such warrant to the extent that, after giving
effect to the exercise, the holder, together with its affiliates, and any other person acting as a group together with the holder or
any of its affiliates, would beneficially own in excess of 4.99% of the number of shares of our common stock outstanding immediately
after giving effect to its exercise. The holder, upon notice to us, may increase or decrease the beneficial ownership limitation provisions
of the warrant, provided that in no event shall the limitation exceed 9.99% of the number of shares of our common stock outstanding immediately
after giving effect to the exercise of the warrant.
The
Maxim Warrants and Ascendiant Warrants contain the same provisions regarding fundamental transactions as those contained in the February
2020 Warrants, except that the Maxim Warrants and Ascendiant Warrants do not provide the holders thereof with the option to require us,
or a successor entity, to pay an amount equal to the Black Scholes value of the warrants in the event of certain fundamental transactions.
The
Maxim Warrants and Ascendiant Warrants are not redeemable. The Maxim Warrants and Ascendiant Warrants contain unlimited “piggyback”
registration rights for a period of five years after February 6, 2020 (but not longer than 7 years from January 17, 2020) at our expense,
subject to certain exceptions. We relied on the exemption from registration available under Section 4(a)(2) of the Securities Act in
connection with the issuance of the warrants to Maxim and Ascendiant.
This
summary of the Maxim Warrants and Ascendiant Warrants is not complete. For the complete terms of the Maxim Warrants and Ascendiant Warrants,
you should refer to the form of Maxim Warrants and Ascendiant Warrants filed as an exhibit to the registration statement of which this
prospectus forms a part.
Effects
of Anti-Takeover Provisions of Our Restated Certificate of Incorporation, Our Restated Bylaws and Delaware Law
The
provisions of (1) Delaware law, (2) our Restated Certificate of Incorporation and (3) our Restated Bylaws discussed below could discourage
or make it more difficult to prevail in a proxy contest or effect other change in our management or the acquisition of control by a holder
of a substantial amount of our voting stock. It is possible that these provisions could make it more difficult to accomplish, or could
deter, transactions that stockholders may otherwise consider to be in their best interests or our best interests. These provisions are
intended to enhance the likelihood of continuity and stability in the composition of our Board of Directors and in the policies formulated
by the Board of Directors and to discourage certain types of transactions that may involve an actual or threatened change in control
of our company. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal. These provisions also
are intended to discourage certain tactics that may be used in proxy fights. These provisions also may have the effect of preventing
changes in our management.
Delaware
Statutory Business Combinations Provision. We are subject to the anti-takeover provisions of Section 203 of the Delaware General
Corporation Law. In general, Section 203 prohibits a publicly-held Delaware corporation from engaging in a “business combination”
with an “interested stockholder” for a period of three years after the date of the transaction in which the person became
an interested stockholder, unless the business combination is, or the transaction in which the person became an interested stockholder
was, approved in a prescribed manner or another prescribed exception applies. For purposes of Section 203, a “business combination”
is defined broadly to include a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder,
and, subject to certain exceptions, an “interested stockholder” is a person who, together with his or her affiliates and
associates, owns (or within three years prior, did own) 15% or more of the corporation’s voting stock.
Classified
Board of Directors; Appointment of Directors to Fill Vacancies; Removal of Directors for Cause. Our Restated Certificate of Incorporation
provides that our Board of Directors will be divided into three classes as nearly equal in number as possible. Each year the stockholders
will elect the members of one of the three classes to a three-year term of office. All directors elected to our classified Board of Directors
will serve until the election and qualification of their respective successors or their earlier resignation or removal. The Board of
Directors is authorized to create new directorships and to fill any positions so created and is permitted to specify the class to which
any new position is assigned. The person filling any of these positions would serve for the term applicable to that class. The Board
of Directors (or its remaining members, even if less than a quorum) is also empowered to fill vacancies on the Board of Directors occurring
for any reason for the remainder of the term of the class of directors in which the vacancy occurred. Members of the Board of Directors
may only be removed for cause and only by the affirmative vote of holders of at least 80% of our outstanding voting stock. These provisions
are likely to increase the time required for stockholders to change the composition of the Board of Directors. For example, in general,
at least two annual meetings will be necessary for stockholders to effect a change in a majority of the members of the Board of Directors.
Authorization
of Blank Check Preferred Stock. Our Restated Certificate of Incorporation provides that our Board of Directors is authorized to issue,
without stockholder approval, blank check preferred stock. Blank check preferred stock can operate as a defensive measure known as a
“poison pill” by diluting the stock ownership of a potential hostile acquirer to prevent an acquisition that is not approved
by our Board of Directors.
Advance
Notice Provisions for Stockholder Proposals and Stockholder Nominations of Directors. Our Restated Bylaws provide that, for nominations
to the Board of Directors or for other business to be properly brought by a stockholder before a meeting of stockholders, the stockholder
must first have given timely notice of the proposal in writing to our Secretary. For an annual meeting, a stockholder’s notice
generally must be delivered not less than 90 days nor more than 120 days prior to the anniversary of the mailing date of the proxy statement
for the previous year’s annual meeting. For a special meeting, the notice must generally be delivered no less than 60 days nor
more than 90 days prior to the special meeting or ten days following the day on which public announcement of the meeting is first made.
Detailed requirements as to the form of the notice and information required in the notice are specified in our Restated Bylaws. If it
is determined that business was not properly brought before a meeting in accordance with our bylaw provisions, this business will not
be conducted at the meeting.
Special
Meetings of Stockholders. Special meetings of the stockholders may be called only by our Board of Directors pursuant to a resolution
adopted by a majority of the total number of directors.
No
Stockholder Action by Written Consent. Our Restated Certificate of Incorporation does not permit our stockholders to act by written
consent. As a result, any action to be effected by our stockholders must be effected at a duly called annual or special meeting of the
stockholders.
Super-Majority
Stockholder Vote required for Certain Actions. The Delaware General Corporation Law provides generally that the affirmative vote
of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or
bylaws, unless the corporation’s certificate of incorporation or bylaws, as the case may be, requires a greater percentage. Our
Restated Certificate of Incorporation requires the affirmative vote of the holders of at least 80% of our outstanding voting stock to
amend or repeal any of the provisions discussed in this section of this prospectus entitled “Effect of Anti-Takeover Provisions
of Our Restated Certificate of Incorporation, Our Restated Bylaws and Delaware Law” or to reduce the number of authorized shares
of common stock or preferred stock. This 80% stockholder vote would be in addition to any separate class vote that might in the future
be required pursuant to the terms of any preferred stock that might then be outstanding. A 80% vote is also required for any amendment
to, or repeal of, our Restated Bylaws by the stockholders. Our Restated Bylaws may be amended or repealed by a simple majority vote of
the Board of Directors.
Potential
Effects of Authorized but Unissued Stock
We
have shares of common stock and preferred stock available for future issuance without stockholder approval. We may utilize these additional
shares for a variety of corporate purposes, including future public offerings to raise additional capital, to facilitate corporate acquisitions
or payment as a dividend on the capital stock.
The
existence of unissued and unreserved common stock and preferred stock may enable our Board of Directors to issue shares to persons friendly
to current management or to issue preferred stock with terms that could render more difficult or discourage a third-party attempt to
obtain control of us by means of a merger, tender offer, proxy contest or otherwise, thereby protecting the continuity of our management.
In addition, the Board of Directors has the discretion to determine designations, rights, preferences, privileges and restrictions, including
voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences of each series of preferred stock,
all to the fullest extent permissible under the Delaware General Corporation Law and subject to any limitations set forth in our certificate
of incorporation. The purpose of authorizing the Board of Directors to issue preferred stock and to determine the rights and preferences
applicable to such preferred stock is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred
stock, while providing desirable flexibility in connection with possible financings, acquisitions and other corporate purposes, could
have the effect of making it more difficult for a third-party to acquire, or could discourage a third-party from acquiring, a majority
of our outstanding voting stock.
Stock
Market Listing
Our
common stock is listed on The NASDAQ Capital Market under the symbol “SINT”.
PLAN
OF DISTRIBUTION
We
are offering up to Units, based on an assumed public offering price of $ per Unit, which represents the closing price of our common stock
on Nasdaq on , 2023, for gross proceeds of up to $ million before deduction of placement agent commissions and offering expenses, in
a best-efforts offering. There is no minimum amount of proceeds that is a condition to closing of this offering. The actual amount of
gross proceeds, if any, in this offering could vary substantially from the gross proceeds from the sale of the maximum amount of securities
being offered in this prospectus.
Pursuant
to a placement agency agreement, dated as of , 2023, we have engaged Maxim Group LLC to act as our exclusive placement agent (the “Placement
Agent”) to solicit offers to purchase the securities offered by this prospectus. The Placement Agent is not purchasing or selling
any securities, nor is it required to arrange for the purchase and sale of any specific number or dollar amount of securities, other
than to use its “reasonable best efforts” to arrange for the sale of the securities by us. Therefore, we may not sell the
entire amount of securities being offered. Investors purchasing securities offered hereby will have the option to execute a securities
purchase agreement with us. In addition to the rights and remedies available to all investors in this offering under federal and state
securities laws, the investors which enter into a securities purchase agreement will also be able to bring claims of breach of contract
against us. Investors who do not enter into a securities purchase agreement shall rely solely on this prospectus in connection with the
purchase of our securities in this offering. The Placement Agent may engage one or more subagents or selected dealers in connection with
this offering.
The
placement agency agreement provides that the Placement Agent’s obligations are subject to conditions contained in the placement
agency agreement.
We
will deliver the securities being issued to the investors upon receipt of investor funds for the purchase of the securities offered pursuant
to this prospectus. There is no arrangement for funds to be received in escrow, trust or similar arrangement and the Units will be offered
at a fixed price and are expected to be issued in a single closing. We expect to deliver the securities being offered pursuant to this
prospectus on or about , 2023.
Placement
Agent Fees, Commissions and Expenses
Upon
the closing of this offering, we will pay the placement agent a cash transaction fee equal to 7% of the aggregate gross cash proceeds
to us from the sale of the securities in the offering. In addition, we will reimburse the placement agent for its out-of-pocket expenses
incurred in connection with this offering, including the fees and expenses of the counsel for the placement agent, up to $100,000.
The
following table shows the public offering price, placement agent fees and proceeds, before expenses, to us.
| |
Per Unit | | |
Total | |
Public offering price | |
$ | | | |
$ | | |
Placement agent fees | |
$ | | | |
$ | | |
Proceeds, before expenses, to us | |
$ | | | |
$ | | |
We
estimate that the total expenses of the offering, including registration, filing and listing fees, printing fees and legal and accounting
expenses, but excluding the placement agent commission, will be approximately $ , all of which are payable by us. This figure includes,
among other things, the placement agent’s fees and expenses (including the legal fees, costs and expenses for the placement agent’s
legal counsel) up to $100,000.
Placement
Agent Warrants
Additionally,
we agreed to grant to the placement agent common stock purchase warrants exercisable for a number of shares of our common stock
equal to 4% of the Units sold in the offering. In the event that we engage Ascendiant Capital Markets, LLC as a financial advisor in
connection with the offering, the placement agent agreed that Ascendiant shall be entitled to 15% of the total fee earned by the
placement agent in connection with the offering and 15% of the placement agent warrants issuable upon closing (i.e., the placement
agent will receive 85% of the cash fee and placement agent warrants, and Ascendiant shall receive 15% of the cash fee and placement
agent warrants). The placement agent warrants will be non-exercisable for six (6) months after the date of the closing and will
expire five years after the commencement of sales of the offering. The placement agent warrants will be exercisable at a price equal
to 110.0% of the public offering price of the Units. The placement agent warrants shall not be redeemable. The placement agent may
not be sold, transferred, assigned, pledged or hypothecated or be the subject of any hedging, short sale, derivative, put, or call
transaction that would result in the effective economic disposition of the securities for a period of 180 days beginning on the date
of the commencement of sales of the offering, except that they may be assigned, in whole or in part, to any officer or partner,
registered person or affiliate of the placement agent (or to Ascendiant) subject to the terms of the lock-up. The placement agent
warrants may be exercised as to all or a lesser number of shares of our common stock. The placement agent warrants will
contain demand registration rights at the holder’s expense until the expiration of the placement agent warrants and
unlimited “piggyback” registration rights for a period of five years after the commencement of sales of the offering at
our expense.
Lock-Up
Agreements
We,
each of our officers and directors and stockholders holding five percent or more of our shares of common stock have agreed, subject to
certain exceptions, not to offer, issue, sell, contract to sell, encumber, grant any option for the sale of or otherwise dispose of any
shares of our common stock or other securities convertible into or exercisable or exchangeable for our common stock for a period of six
months after this offering is completed without the prior written consent of the placement agent.
The
placement agent may in its sole discretion and at any time without notice release some or all of the shares subject to lock-up agreements
prior to the expiration of the lock-up period. When determining whether or not to release shares from the lock-up agreements, the placement
agent will consider, among other factors, the security holder’s reasons for requesting the release, the number of shares for which
the release is being requested and market conditions at the time.
Indemnification
We
have agreed to indemnify the placement agent against certain liabilities, including liabilities under the Securities Act, and to contribute
to payments that the placement agent may be required to make for these liabilities.
Regulation
M
The
placement agent may be deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act, and any commissions
received by it and any profit realized on the resale of the securities sold by it while acting as principal might be deemed to be underwriting
discounts or commissions under the Securities Act. As an underwriter, the placement agent would be required to comply with the requirements
of the Securities Act and the Exchange Act, including, without limitation, Rule 10b-5 and Regulation M under the Exchange Act. These
rules and regulations may limit the timing of purchases and sales of our securities by the placement agent acting as principal. Under
these rules and regulations, the placement agent (i) may not engage in any stabilization activity in connection with our securities and
(ii) may not bid for or purchase any of our securities or attempt to induce any person to purchase any of our securities, other than
as permitted under the Exchange Act, until it has completed its participation in the distribution.
Determination
of Offering Price and Warrant Exercise Price
The
actual offering price of the securities we are offering, and the exercise price of the Warrants included in the Units that we are offering,
were negotiated between us, the placement agent and the investors in the offering based on the trading of our shares of common stock
prior to the offering, among other things. Other factors considered in determining the public offering price of the securities we are
offering, as well as the exercise price of the Warrants that we are offering include our history and prospects, the stage of development
of our business, our business plans for the future and the extent to which they have been implemented, an assessment of our management,
the general conditions of the securities markets at the time of the offering and such other factors as were deemed relevant.
Electronic
Distribution
A
prospectus in electronic format may be made available on a website maintained by the placement agent. In connection with the offering,
the placement agent or selected dealers may distribute prospectuses electronically. No forms of electronic prospectus other than prospectuses
that are printable as Adobe® PDF will be used in connection with this offering.
Other
than the prospectus in electronic format, the information on the placement agent’s website and any information contained in any
other website maintained by the placement agent is not part of the prospectus or the registration statement of which this prospectus
forms a part, has not been approved and/or endorsed by us or the placement agent in its capacity as placement agent and should not be
relied upon by investors.
Certain
Relationships
The
placement agent and its affiliates have provided and may in the future provide, from time to time, investment banking and financial advisory
services to us in the ordinary course of business, for which they may receive customary fees and commissions.
In
connection with a rights offering in October 2022, we entered into a dealer-manager agreement with the placement agent, and on the closing
of such offering on October 17, 2022, we paid the placement agent a fee of 7% of the gross proceeds we received in the rights offering,
as well as certain expenses, and issued to the placement agent warrants to purchase 10,483 shares of our common stock and to Ascendiant
warrants to purchase 1,850 shares of our common stock.
On
February 25, 2021, we entered into an equity distribution agreement with the placement agent (the “Equity Distribution Agreement”),
pursuant to which we may sell shares of our common stock having an aggregate offering price of up to $15,000,000 from time to time through
the placement agent. The placement agent will be entitled to a transaction fee at a fixed rate of 2.0% of the gross sales price of shares
of common stock sold under the Equity Distribution Agreement. As of the date hereof, no shares of our common stock have been sold under
the Equity Distribution Agreement.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Equiniti Trust Company, LLC, whose address is 48 Wall Street, 22nd
Floor, New York, New York 10005. Their telephone number is 1-347-554-1818.
Listing
Our
common stock is traded on Nasdaq under the symbol “SINT.”
Selling
Restrictions
Canada.
The securities may be sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors,
as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are
permitted clients, as defined in National Instrument 31 103 Registration Requirements, Exemptions and Ongoing Registrant Obligations.
Any resale of the securities must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements
of applicable securities laws.
Securities
legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus
supplement (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised
by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser
should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars
of these rights or consult with a legal advisor.
Pursuant
to section 3A.3 of National Instrument 33 105 Underwriting Conflicts (NI 33 105), the underwriters are not required to comply
with the disclosure requirements of NI 33-105 regarding underwriters conflicts of interest in connection with this offering.
European
Economic Area. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive
(each, a “Relevant Member State”) an offer to the public of any securities may not be made in that Relevant Member State,
except that an offer to the public in that Relevant Member State of any securities may be made at any time under the following exemptions
under the Prospectus Directive, if they have been implemented in that Relevant Member State:
|
● |
to
any legal entity which is a qualified investor as defined in the Prospectus Directive; |
|
|
|
|
● |
to
fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural
or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive,
subject to obtaining the prior consent of the representatives for any such offer; or |
|
|
|
|
● |
in
any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of securities shall
result in a requirement for the publication by us or any underwriters of a prospectus pursuant to Article 3 of the Prospectus Directive. |
For
the purposes of this provision, the expression an “offer to the public” in relation to any securities in any Relevant Member
State means the communication in any form and by any means of sufficient information on the terms of the offer and any securities to
be offered so as to enable an investor to decide to purchase any securities, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC
(and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes
any relevant implementing measure in the Relevant Member State, and the expression “2010 PD Amending Directive” means Directive
2010/73/EU.
Israel.
This document does not constitute a prospectus under the Israeli Securities Law, 5728-1968, or the Securities Law, and has not been filed
with or approved by the Israel Securities Authority. In the State of Israel, this document is being distributed only to, and is directed
only at, and any offer of the shares is directed only at, investors listed in the first addendum, or the Addendum, to the Israeli Securities
Law, consisting primarily of joint investment in trust funds, provident funds, insurance companies, banks, portfolio managers, investment
advisors, members of the Tel Aviv Stock Exchange, underwriters, venture capital funds, entities with equity in excess of NIS 50 million
and “qualified individuals”, each as defined in the Addendum (as it may be amended from time to time), collectively referred
to as qualified investors (in each case purchasing for their own account or, where permitted under the Addendum, for the accounts of
their clients who are investors listed in the Addendum). Qualified investors will be required to submit written confirmation that they
fall within the scope of the Addendum, are aware of the meaning of same and agree to it.
United
Kingdom. Each underwriter has represented and agreed that:
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it
has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the FSMA) received
by it in connection with the issue or sale of the securities in circumstances in which Section 21(1) of the FSMA does not apply to
us; and |
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it
has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the securities
in, from or otherwise involving the United Kingdom. |
Switzerland.
The securities may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (the SIX) or on any other
stock exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure standards
for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses
under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in Switzerland.
Neither this document nor any other offering or marketing material relating to the securities or the offering may be publicly distributed
or otherwise made publicly available in Switzerland.
Neither
this document nor any other offering or marketing material relating to the offering, or the securities have been or will be filed with
or approved by any Swiss regulatory authority. In particular, this document will not be filed with, and the offer of securities will
not be supervised by, the Swiss Financial Market Supervisory Authority FINMA, and the offer of securities has not been and will not be
authorized under the Swiss Federal Act on Collective Investment Schemes (CISA). Accordingly, no public distribution, offering or advertising,
as defined in CISA, its implementing ordinances and notices, and no distribution to any non-qualified investor, as defined in CISA, its
implementing ordinances and notices, shall be undertaken in or from Switzerland, and the investor protection afforded to acquirers of
interests in collective investment schemes under CISA does not extend to acquirers of securities.
Australia.
No placement document, prospectus, product disclosure statement or other disclosure document has been lodged with the Australian Securities
and Investments Commission (ASIC), in relation to the offering.
This
prospectus does not constitute a prospectus, product disclosure statement or other disclosure document under the Corporations Act 2001
(the Corporations Act) and does not purport to include the information required for a prospectus, product disclosure statement or other
disclosure document under the Corporations Act.
Any
offer in Australia of the securities may only be made to persons (the Exempt Investors) who are “sophisticated investors”
(within the meaning of section 708(8) of the Corporations Act), “professional investors” (within the meaning of section 708(11)
of the Corporations Act) or otherwise pursuant to one or more exemptions contained in section 708 of the Corporations Act so that it
is lawful to offer the securities without disclosure to investors under Chapter 6D of the Corporations Act.
The
securities applied for by Exempt Investors in Australia must not be offered for sale in Australia in the period of 12 months after the
date of allotment under the offering, except in circumstances where disclosure to investors under Chapter 6D of the Corporations Act
would not be required pursuant to an exemption under section 708 of the Corporations Act or otherwise or where the offer is pursuant
to a disclosure document which complies with Chapter 6D of the Corporations Act. Any person acquiring securities must observe such Australian
on-sale restrictions.
This
prospectus contains general information only and does not take account of the investment objectives, financial situation or particular
needs of any particular person. It does not contain any securities recommendations or financial product advice. Before making an investment
decision, investors need to consider whether the information in this prospectus is appropriate to their needs, objectives and circumstances,
and, if necessary, seek expert advice on those matters.
Notice
to Prospective Investors in the Cayman Islands. No invitation, whether directly or indirectly, may be made to the public in the
Cayman Islands to subscribe for our securities.
Taiwan.
The securities have not been and will not be registered with the Financial Supervisory Commission of Taiwan pursuant to relevant securities
laws and regulations and may not be sold, issued or offered within Taiwan through a public offering or in circumstances which constitutes
an offer within the meaning of the Securities and Exchange Act of Taiwan that requires a registration or approval of the Financial Supervisory
Commission of Taiwan. No person or entity in Taiwan has been authorized to offer, sell, give advice regarding or otherwise intermediate
the offering and sale of the securities in Taiwan.
Notice
to Prospective Investors in Hong Kong. The contents of this prospectus have not been reviewed by any regulatory authority in
Hong Kong. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this prospectus,
you should obtain independent professional advice. Please note that (i) our shares may not be offered or sold in Hong Kong, by means
of this prospectus or any document other than to “professional investors” within the meaning of Part I of Schedule 1 of the
Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) (SFO) and any rules made thereunder, or in other circumstances which do
not result in the document being a “prospectus” within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong)
(CO) or which do not constitute an offer or invitation to the public for the purpose of the CO or the SFO, and (ii) no advertisement,
invitation or document relating to our shares may be issued or may be in the possession of any person for the purpose of issue (in each
case whether in Hong Kong or elsewhere) which is directed at, or the contents of which are likely to be accessed or read by, the public
in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to the shares which are or
are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of
the SFO and any rules made thereunder.
Notice
to Prospective Investors in the People’s Republic of China. This prospectus may not be circulated or distributed in the
PRC and the shares may not be offered or sold, and will not offer or sell to any person for re-offering or resale directly or indirectly
to any resident of the PRC except pursuant to applicable laws, rules and regulations of the PRC. For the purpose of this paragraph only,
the PRC does not include Taiwan and the special administrative regions of Hong Kong and Macau.
CERTAIN
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The
following is a general discussion of certain material U.S. federal income tax consequences relating to the acquisition, ownership and
disposition of Units, consisting of shares of common stock and Class E Warrants, the acquisition, ownership and disposition of units
consisting of pre-funded warrants and Class E Warrants (such units are referred to in this discussion as “pre-funded units”),
the acquisition, ownership, and disposition of shares of common stock acquired as part of the Units, the acquisition, ownership, and
disposition of pre-funded warrants acquired as part of the pre-funded units, the exercise, disposition, or expiration of Class E Warrants
acquired as part of the Units or pre-funded units, the acquisition, ownership, and disposition of shares of common stock received upon
exercise of the pre-funded warrants, and the acquisition, ownership, and disposition of shares of common stock received upon exercise
of the Class E Warrants (the “warrant shares”), all as acquired pursuant to this prospectus. This discussion is based on
current provisions of the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), existing and proposed
U.S. Treasury Regulations promulgated or proposed thereunder and current administrative and judicial interpretations thereof, all as
in effect as of the date of this prospectus and all of which are subject to change or to differing interpretation, possibly with retroactive
effect. This summary does not discuss the potential effects, whether adverse or beneficial, of any proposed legislation that, if enacted,
could be applied on a retroactive or prospective basis. We have not sought and will not seek any rulings from the Internal Revenue Service
(the “IRS”), or an opinion of legal counsel, regarding the matters discussed below. There can be no assurance that the IRS
or a court will not take a contrary position.
This
discussion is limited to U.S. holders and non-U.S. holders who hold Units, pre-funded units, shares of common stock, pre-funded warrants,
Class E Warrants, or warrant shares, as applicable, as a capital asset within the meaning of Section 1221 of the Internal Revenue Code
(generally, as property held for investment). This discussion does not address all aspects of U.S. federal income taxation, such as the
U.S. alternative minimum income tax and the additional tax on net investment income, nor does it address any aspect of state, local or
non-U.S. taxes, or U.S. federal taxes other than income taxes, such as federal estate and gift taxes. Except as provided below, this
summary does not address tax reporting requirements. This discussion does not consider any specific facts or circumstances that may apply
to a holder and does not address the special tax considerations that may be applicable to particular holders, such as:
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insurance
companies; |
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tax-exempt
organizations and governmental organizations; |
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banks
or other financial institutions; |
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brokers
or dealers in securities or foreign currency; |
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traders
in securities who elect to apply a mark-to-market method of accounting; |
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real
estate investment trusts, regulated investment companies or mutual funds; |
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pension
plans; |
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controlled
foreign corporations, and shareholders thereof; |
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passive
foreign investment companies, and shareholders thereof; |
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corporations
organized outside the United States, any state thereof, or the District of Columbia that are nonetheless treated as U.S. persons
for U.S. federal income tax purposes; |
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persons
that own (directly, indirectly or constructively) more than 5% of the total voting power or total value of our common stock; |
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corporations
that accumulate earnings to avoid U.S. federal income tax; |
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persons
subject to the alternative minimum tax; |
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U.S.
expatriates and certain former citizens or long-term residents of the United States; |
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persons
that have a “functional currency” other than the U.S. dollar; |
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persons
that acquire Units, pre-funded units, shares of common stock, pre-funded warrants, Class E Warrants or warrant shares as compensation
for services; |
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owners
that hold our stock as part of a straddle, hedge, conversion transaction, synthetic security or other integrated investment; |
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holders
subject to special accounting rules; |
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corporations (and shareholders thereof); |
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partnerships
or other entities treated as partnerships for U.S. federal income tax purposes (and partners or other owners thereof); and |
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U.S.
holders that are subject to taxing jurisdictions other than, or in addition to, the United States with respect to their Units, pre-funded
units, shares of common stock, pre-funded warrants, Class E Warrants or warrant shares, or that hold such securities in connection
with a trade or business, permanent establishment or fixed base outside the United States. |
If
an entity or arrangement taxable as a partnership (or other “pass-through entity) for U.S. federal income tax purposes holds our
Units, pre-funded units, shares of common stock, pre-funded warrants, Class E Warrants or warrant shares, the U.S. federal income tax
treatment of such entity (or arrangement) and the partners (or other owners) of such entity generally will depend on the status of the
partners, the activities of the entity and certain determinations made at the partner level. This summary does not address the tax consequences
to any such owner. Partners (or other owners) of entities or arrangements that are classified as partnerships or as “pass-through”
entities for U.S. federal income tax purposes should consult their own tax advisors regarding the U.S. federal, U.S. federal net investment
income, U.S. federal alternative minimum, U.S. federal estate and gift, U.S. state and local, and non-U.S. tax consequences arising from
and relating to the acquisition, ownership, and disposition our Units, pre-funded units, shares of common stock, pre-funded warrants,
Class E Warrants or warrant shares.
For
purposes of this discussion, the term “U.S. holder” means a beneficial owner of our Units, pre-funded units, shares of common
stock, pre-funded warrants, Class E Warrants or warrant shares that is, for U.S. federal income tax purposes:
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an
individual who is a citizen or resident of the United States; |
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a
corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia; |
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an
estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
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a
trust, if (1) a U.S. court is able to exercise primary supervision over the administration of the trust and one or more U.S. persons
have authority to control all substantial decisions of the trust or (2) the trust has a valid election to be treated as a U.S. person
under applicable U.S. Treasury Regulations. |
A
“non-U.S. holder” is a beneficial owner of our Units, pre-funded units, shares of common stock, pre-funded warrants, Class
E Warrants or warrant shares that is neither a U.S. holder nor a partnership (or other entity treated as a partnership for U.S. federal
income tax purposes).
THIS
DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT, AND IS NOT INTENDED TO BE, LEGAL OR TAX ADVICE. PROSPECTIVE INVESTORS SHOULD
CONSULT THEIR OWN TAX ADVISORS REGARDING THE U.S. FEDERAL, STATE, LOCAL, AND NON-U.S. INCOME, ESTATE AND OTHER TAX CONSIDERATIONS OF
ACQUIRING, HOLDING AND DISPOSING OF OUR UNITS, PRE-FUNDED UNITS, SHARES OF COMMON STOCK, PRE-FUNDED WARRANTS, CLASS E WARRANTS OR WARRANT
SHARES.
U.S.
Federal Income Tax Consequences of the Acquisition of Units or Pre-Funded Units
For
U.S. federal income tax purposes, the acquisition by a U.S. holder or a non-U.S. holder of a Unit will be treated as the acquisition
of one share of common stock and one Class E Warrant. The purchase price for each Unit will be allocated among these two components in
proportion to their relative fair market values at the time the Unit is purchased by the U.S. holder or non-U.S. holder. This allocation
of the purchase price for each Unit will establish a U.S. holder’s or non-U.S. holder’s initial tax basis for U.S. federal
income tax purposes in the one share of common stock and the one Class E Warrant that comprise each Unit.
For
this purpose, we will allocate $ of the purchase price for the Unit to the share of common stock, and $ of the purchase price for the
Unit to the Class E Warrant. However, the IRS will not be bound by such allocation of the purchase price for the Units, and therefore,
the IRS or a U.S. court may not respect the allocation set forth above. Each U.S. holder and non-U.S. holder should consult its own tax
advisor regarding the allocation of the purchase price for the Units.
For
U.S. federal income tax purposes, the acquisition by a U.S. holder or a non-U.S. holder of a pre-funded unit will be treated as the acquisition
of one pre-funded warrant and one Class E Warrant. The purchase price for each pre-funded unit will be allocated among these two components
in proportion to their relative fair market values at the time the pre-funded unit is purchased by the U.S. holder or non-U.S. holder.
This allocation of the purchase price for each pre-funded unit will establish a U.S. holder’s or non-U.S. holder’s initial
tax basis for U.S. federal income tax purposes in the one pre-funded warrant and one Class E Warrant that comprise each pre-funded unit.
For
this purpose, we will allocate $ of the purchase price for the pre-funded unit to the pre-funded warrant and $ of the purchase price
for each pre-funded unit to the Class E Warrant. However, the IRS will not be bound by such allocation of the purchase price for the
pre-funded units, and therefore, the IRS or a U.S. court may not respect the allocation set forth above. Each U.S. holder and non-U.S.
holder should consult its own tax advisor regarding the allocation of the purchase price for the pre-funded units.
Treatment
of Pre-Funded Warrants
Although
it is not entirely free from doubt, we believe that a pre-funded warrant should be treated as a separate class of shares of common stock
for U.S. federal income tax purposes and a U.S. holder or non-U.S. holder of pre-funded warrants should generally be taxed in the same
manner as a holder of shares of common stock except as described below. Accordingly, no gain or loss should be recognized upon the exercise
of a pre-funded warrant and, upon exercise, the holding period of a pre-funded warrant should carry over to the shares of common stock
received. Similarly, the tax basis of the pre-funded warrant should carry over to the shares of common stock received upon exercise,
increased by the exercise price of $0.0001 per share. However, such characterization is not binding on the IRS, and the IRS may treat
the pre-funded warrants as warrants to acquire shares of common stock. If so, the amount and character of a U.S. holder’s or non-U.S.
holder’s gain with respect to an investment in pre-funded warrants could change. Accordingly, each U.S. holder and non-U.S. holder
should consult its own tax advisors regarding the risks associated with the acquisition of a pre-funded warrant pursuant to this prospectus
(including potential alternative characterizations). The balance of this discussion generally assumes that the characterization described
above is respected for U.S. federal income tax purposes.
In
certain limited circumstances, a U.S. holder may be permitted to undertake a cashless exercise of pre-funded warrants into shares of
common stock. The U.S. federal income tax treatment of a cashless exercise of pre-funded warrants into shares of common stock is unclear,
and the tax consequences of a cashless exercise could differ from the consequences upon the exercise of a pre-funded warrant described
in the preceding paragraph. U.S. holders should consult their own tax advisors regarding the U.S. federal income tax consequences of
a cashless exercise of pre-funded warrants.
U.S.
Holders
U.S.
Federal Income Tax Consequences of the Exercise, Disposition or Expiration of Class E Warrants or Certain Adjustments to the Class E
Warrants
Exercise
of Class E Warrants
A
U.S. holder should not recognize gain or loss on the exercise of Class E Warrants and related receipt of warrant shares (unless cash
is received in lieu of the issuance of a fractional warrant share). A U.S. holder’s initial tax basis in the warrant shares received
on the exercise of Class E Warrants should be equal to the sum of (a) such U.S. holder’s tax basis in such Class E Warrants plus
(b) the exercise price paid by such U.S. holder on the exercise of such Class E Warrants. It is unclear whether a U.S. holder’s
holding period for the warrant shares received on the exercise of Class E Warrants would commence on the date of exercise of the Class
E Warrants or the day following the date of exercise of the Class E Warrants.
In
certain limited circumstances, a U.S. holder may be permitted to undertake a cashless exercise of Class E Warrants into warrant shares.
The U.S. federal income tax treatment of a cashless exercise of Class E Warrants into warrant shares is unclear, and the tax consequences
of a cashless exercise could differ from the consequences upon the exercise of Class E Warrants described in the preceding paragraph.
U.S. holders should consult their own tax advisors regarding the U.S. federal income tax consequences of a cashless exercise of Class
E Warrants.
Disposition
of Class E Warrants
A
U.S. holder will recognize gain or loss on the sale or other taxable disposition of a Class E Warrant in an amount equal to the difference,
if any, between (a) the amount of cash plus the fair market value of any property received and (b) such U.S. holder’s tax basis
in the Class E Warrant sold or otherwise disposed of. Any such gain or loss generally will be a capital gain or loss, which will be long-term
capital gain or loss if the Class E Warrant is held for more than one year. Deductions for capital losses are subject to complex limitations
under the Internal Revenue Code.
Expiration
of Class E Warrants Without Exercise
Upon
the lapse or expiration of a Class E Warrant, a U.S. holder will recognize a loss in an amount equal to such U.S. holder’s tax
basis in the Class E Warrant. Any such loss generally will be a capital loss and will be long-term capital loss if the Class E Warrant
is held for more than one year. Deductions for capital losses are subject to complex limitations under the Internal Revenue Code.
Certain
Adjustments to the Class E Warrants
Under
Section 305 of the Internal Revenue Code, an adjustment to the number of warrant shares that will be issued on the exercise of the Class
E Warrants, or an adjustment to the exercise price of the Class E Warrants, may be treated as a constructive distribution to a U.S. holder
of the Class E Warrants if, and to the extent that, such adjustment has the effect of increasing such U.S. holder’s proportionate
interest in the “earnings and profits” or our assets, depending on the circumstances of such adjustment (for example, if
such adjustment is to compensate for a distribution of cash or other property to our shareholders). Adjustments to the exercise price
of Class E Warrants made pursuant to a bona fide reasonable adjustment formula that has the effect of preventing dilution of the interest
of the holders of the Class E Warrants should generally not be considered to result in a constructive distribution. Any such constructive
distribution would be taxable whether or not there is an actual distribution of cash or other property. (See more detailed discussion
of the rules applicable to distributions made by us at “Distributions on Shares of Common Stock, Pre-Funded Warrants and Warrant
Shares” below).
U.S.
Federal Income Tax Consequences of the Acquisition, Ownership, and Disposition of Shares of Common Stock, Pre-Funded Warrants and Warrant
Shares
Distributions
on Shares of Common Stock, Pre-Funded Warrants and Warrant Shares
A
U.S. holder that receives a distribution, including a constructive distribution, with respect to a share of common stock, pre-funded
warrant or warrant share (as well as any constructive distribution on a Class E Warrant as described above) will be required to include
the amount of such distribution in gross income as a dividend to the extent of our current and accumulated “earnings and profits”,
as computed under U.S. federal income tax principles. To the extent that a distribution exceeds our current and accumulated “earnings
and profits”, such distribution will be treated first as a tax-free return of capital to the extent of a U.S. holder’s tax
basis in the shares of common stock, pre-funded warrants or warrant shares and thereafter as gain from the sale or exchange of such shares
of common stock, pre-funded warrants or warrant shares (see “Sale or Other Taxable Disposition of Shares of Common Stock, Pre-Funded
Warrants and/or Warrant Shares” below). Dividends received on shares of common stock, pre-funded warrants or warrant shares
may be eligible for a dividends received deduction, subject to certain restrictions relating to, among others, the corporate U.S. holder’s
taxable income, holding period and debt financing. Dividends paid by us to non-corporate U.S. holders, including individuals, generally
will be eligible for the preferential tax rates applicable to long-term capital gains for dividends, provided certain holding period
and other conditions are satisfied. The dividend rules are complex, and each U.S. holder should consult its own tax advisor regarding
the application of such rules.
Sale
or Other Taxable Disposition of Shares of Common Stock, Pre-Funded Warrants and/or Warrant Shares
Upon
the sale or other taxable disposition of shares of common stock, pre-funded warrants or warrant shares, a U.S. holder generally will
recognize capital gain or loss in an amount equal to the difference between (a) the amount of cash plus the fair market value of any
property received and (b) such U.S. holder’s tax basis in such shares of common stock, pre-funded warrants or warrant shares sold
or otherwise disposed of. Gain or loss recognized on such sale or other taxable disposition generally will be long-term capital gain
or loss if, at the time of the sale or other taxable disposition, the shares of common stock, pre-funded warrants or warrant shares have
been held for more than one year. Preferential tax rates may apply to long-term capital gain of a U.S. holder that is an individual,
estate, or trust. There are no preferential tax rates for long-term capital gain of a U.S. holder that is a corporation. Deductions for
capital losses are subject to significant limitations under the Internal Revenue Code.
Non-U.S.
Holders
U.S.
Federal Income Tax Consequences of the Exercise, Disposition or Expiration of Class E Warrants or Certain Adjustments to the Class E
Warrants
Exercise
of Class E Warrants
A
non-U.S. holder generally will not recognize gain or loss on the exercise of Class E Warrants and related receipt of warrant shares (unless
cash is received in lieu of the issuance of a fractional warrant share and certain other conditions are present, as discussed below under
“Gain on Sale, Exchange or Other Taxable Disposition of Shares of Common Stock, Pre-Funded Warrants, Class E Warrants and Warrant
Shares”). A non-U.S. holder’s initial tax basis in the warrant shares received on the exercise of Class E Warrants should
be equal to the sum of (i) the non-U.S. holder’s tax basis in the Class E Warrants, plus (ii) the exercise price paid by the non-U.S.
holder on the exercise of the Class E Warrants. It is unclear whether a non-U.S. holder’s holding period for the warrant shares
received on the exercise of Class E Warrants would commence on the date of exercise of the Class E Warrants or the day following the
date of exercise of the Class E Warrants.
In
certain limited circumstances, a non-U.S. holder may be permitted to undertake a cashless exercise of Class E Warrants into warrant shares.
The U.S. federal income tax treatment of a cashless exercise of Class E Warrants into warrant shares is unclear, and the tax consequences
of a cashless exercise could differ from the consequences upon the exercise of Class E Warrants described in the preceding paragraph.
Non-U.S. holders should consult their own tax advisors regarding the U.S. federal income tax consequences of a cashless exercise of Class
E Warrants.
Disposition
of Class E Warrants
A
non-U.S. Holder will recognize gain or loss on the sale or other taxable disposition of a Class E Warrant in an amount equal to the difference,
if any, between (a) the amount of cash plus the fair market value of any property received and (b) such non-U.S. holder’s tax basis
in the Class E Warrant sold or otherwise disposed of. Any such gain or loss generally will be a capital gain or loss, which will be long-term
capital gain or loss if the Class E Warrant is held for more than one year. Any such gain recognized by a non-U.S. holder will be taxable
for U.S. federal income tax purposes according to rules discussed under the heading “Gain on Sale, Exchange or Other Taxable
Disposition of Shares of Common Stock, Pre-Funded Warrants, Class E Warrants and Warrant Shares” below.
Expiration
of Class E Warrants without Exercise
Upon
the lapse or expiration of a Class E Warrant, a non-U.S. holder will recognize loss in an amount equal to such non-U.S. holder’s
tax basis in the Class E Warrant. Any such loss generally will be a capital loss and will be long-term capital loss if the Class E Warrants
are held for more than one year. Deductions for capital losses are subject to complex limitations under the Internal Revenue Code.
Certain
Adjustments to the Class E Warrants
Under
Section 305 of the Internal Revenue Code, an adjustment to the number of warrant shares that will be issued on the exercise of the Class
E Warrants, or an adjustment to the exercise price of the Class E Warrants, may be treated as a constructive distribution to a non-U.S.
holder of the Class E Warrants if, and to the extent that, such adjustment has the effect of increasing such non-U.S. holder’s
proportionate interest in our “earnings and profits” or assets, depending on the circumstances of such adjustment (for example,
if such adjustment is to compensate for a distribution of cash or other property to our shareholders). Adjustments to the exercise price
of a Class E Warrant made pursuant to a bona fide reasonable adjustment formula that has the effect of preventing dilution of the interest
of the holders of the Class E Warrants should generally not result in a constructive distribution. See the more detailed discussion of
the rules applicable to distributions made by us under the heading “Distributions on Shares of Common Stock, Pre-Funded Warrants
and Warrant Shares” below.
U.S.
Federal Income Tax Consequences of the Acquisition, Ownership, and Disposition of Shares of Common Stock, Pre-Funded Warrants and Warrant
Shares
Distributions
on Shares of Common Stock, Pre-Funded Warrants and Warrant Shares
If
we pay distributions of cash or property with respect to our shares of common stock, pre-funded warrants or warrant shares, those distributions
generally will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings
and profits, as determined under U.S. federal income tax principles. If a distribution exceeds our current and accumulated earnings and
profits, the excess will be treated as a tax-free return of the non-U.S. holder’s investment, up to such holder’s tax basis
in its shares of common stock, pre-funded warrants or warrants shares, as applicable. Any remaining excess will be treated as capital
gain, subject to the tax treatment described below under the heading “— Gain on Sale, Exchange or Other Taxable Disposition
of Shares of Common Stock, Pre-Funded Warrants, Warrants and Warrant Shares.” Dividends paid to a non-U.S. holder generally
will be subject to withholding of U.S. federal income tax at a 30% rate, or such lower rate as may be specified by an applicable income
tax treaty between the United States and such holder’s country of residence. In the case of any constructive distribution, it is
possible that this tax would be withheld from any amount owed to the non-U.S. holder, including, but not limited to, distributions of
cash, shares of common stock or sales proceeds subsequently paid or credited to that holder. If we are unable to determine, at the time
of payment of a distribution, whether the distribution will constitute a dividend, we may nonetheless choose to withhold any U.S. federal
income tax on the distribution as permitted by U.S. Treasury Regulations. If we are a USRPHC (as defined below) and we do not qualify
for the Regularly Traded Exception (as defined below), distributions which constitute a return of capital will be subject to withholding
tax unless an application for a withholding certificate is filed to reduce or eliminate such withholding.
Distributions
that are treated as effectively connected with a trade or business conducted by a non-U.S. holder within the United States are generally
not subject to the 30% (or lower rate as may be specified by an applicable tax treaty) withholding tax if the non-U.S. holder provides
a properly executed IRS Form W-8ECI stating that the distributions are not subject to withholding because they are effectively connected
with the non-U.S. holder’s conduct of a trade or business in the United States. If a non-U.S. holder is engaged in a trade or business
in the United States and the distribution is effectively connected with the conduct of that trade or business, the distribution will
generally have the consequences described above for a U.S. holder (subject to any modification provided under an applicable income tax
treaty). Any U.S. effectively connected income received by a non-U.S. holder that is treated as a corporation for U.S. federal income
tax purposes may also, under certain circumstances, be subject to an additional “branch profits tax” at a 30% rate (or such
lower rate as may be specified by an applicable income tax treaty).
A
non-U.S. holder who claims the benefit of an applicable income tax treaty between the United States and such holder’s country of
residence generally will be required to provide a properly executed IRS Form W-8BEN or W-8BEN-E, as applicable, and satisfy applicable
certification and other requirements. A non-U.S. holder that is eligible for a reduced rate of U.S. withholding tax under an income tax
treaty generally may obtain a refund or credit of any excess amounts withheld by timely filing an appropriate claim with the IRS. Non-U.S.
holders should consult their own tax advisors regarding their entitlement to benefits under a relevant income tax treaty.
Gain
on Sale, Exchange or Other Taxable Disposition of Shares of Common Stock, Pre-Funded Warrants, Class E Warrants and Warrant Shares
Subject
to the discussions below in “—Information Reporting and Backup Withholding” and “—Foreign Account
Tax Compliance Act,” a non-U.S. holder generally will not be subject to U.S. federal income tax on gain recognized on a sale,
exchange or other taxable disposition of our shares of common stock, pre-funded warrants, Class E Warrants, or warrant shares unless:
|
● |
the
gain is effectively connected with the non-U.S. holder’s conduct of a trade or business in the United States and, if an applicable
income tax treaty so provides, the gain is attributable to a permanent establishment maintained by the non-U.S. holder in the United
States; in these cases, the non-U.S. holder will be taxed on a net income basis at the regular graduated rates and in the manner
applicable to a U.S. holder, and, if the non-U.S. holder is a corporation, an additional branch profits tax at a rate of 30%, or
a lower rate as may be specified by an applicable income tax treaty, may also apply; |
|
|
|
|
● |
the
non-U.S. holder is an individual present in the United States for 183 days or more in the taxable year of the disposition and certain
other conditions are met, in which case the non-U.S. holder will be subject to a 30% tax (or such lower rate as may be specified
by an applicable income tax treaty) on the amount by which such non-U.S. holder’s capital gains allocable to U.S. sources exceed
capital losses allocable to U.S. sources during the taxable year of the disposition; or |
|
|
|
|
● |
we
are or have been a “U.S. real property holding corporation” (“USRPHC”) for U.S. federal income tax
purposes at any time during the shorter of the non-U.S. holder’s holding period or the 5-year period ending on the date of
disposition of shares of common stock, pre-funded warrants, Class E Warrants or warrant shares; provided, with respect to the shares
of common stock and warrant shares, that as long as our shares of common stock are regularly traded on an established securities
market as determined under the U.S. Treasury Regulations (the “Regularly Traded Exception”), a non-U.S. holder
would not be subject to taxation on the gain on the sale of shares of common stock or warrant shares under this rule unless the non-U.S.
holder has owned: (i) more than 5% of our shares of common stock at any time during such 5-year or shorter period; (ii) pre-funded
warrants with a fair market value on the date acquired by such holder greater than the fair market value on that date of 5% of our
shares of common stock; (iii) Class E Warrants with a fair market value on the date acquired by such holder greater than the fair
market value on that date of 5% of our shares of common stock; or (iv) aggregate equity securities of ours with a fair market value
on the date acquired in excess of 5% of the fair market value of our shares of common stock on such date (in any case, a “5%
Shareholder”). Since the Class E Warrants are not expected to be listed on a securities market, the Class E Warrants are
unlikely to qualify for the Regularly Traded Exception. Special rules apply to the pre-funded warrants. Non-U.S. holders holding
pre-funded warrants should consult their own tax advisors regarding such rules. In determining whether a non-U.S. holder is a 5%
Shareholder, certain attribution rules apply in determining ownership for this purpose. We believe that we are not currently, and
do not anticipate becoming in the future, a USRPHC for U.S. federal income tax purposes. However, we can provide no assurances that
we are not currently, or will not become, a USRPHC, or if we are or become a USRPHC, that the shares of common stock, pre-funded
warrants, Class E Warrants or warrant shares will meet the Regularly Traded Exception at the time a non-U.S. holder purchases such
securities or sells, exchanges or otherwise disposes of such securities. Non-U.S. holders should consult with their own tax advisors
regarding the consequences to them of investing in a USRPHC. If we are a USRPHC, a non-U.S. holder will be taxed as if any gain or
loss were effectively connected with the conduct of a trade or business as described above in “Distributions on Shares of
Common Stock, Pre-Funded Warrants and Warrant Shares” in the event that (i) such holder is a 5% Shareholder, or (ii) the
Regularly Traded Exception is not satisfied during the relevant period. |
Information
Reporting and Backup Withholding
Distributions
on, and the payment of the proceeds of a disposition of, our shares of common stock, pre-funded warrants and warrant shares generally
will be subject to information reporting if made within the United States or through certain U.S.-related financial intermediaries. Information
returns are required to be filed with the IRS and copies of information returns may be made available to the tax authorities of the country
in which a holder resides or is incorporated under the provisions of a specific treaty or agreement.
Backup
withholding may also apply if the holder fails to provide certification of exempt status or a correct U.S. taxpayer identification number
and otherwise comply with the applicable backup withholding requirements. Generally, a holder will not be subject to backup withholding
if it provides a properly completed and executed IRS Form W-9 or appropriate IRS Form W-8, as applicable. Backup withholding is not an
additional tax. Amounts withheld under the backup withholding rules may be refunded or credited against the holder’s U.S. federal
income tax liability, if any, provided certain information is timely filed with the IRS.
Foreign
Account Tax Compliance Act
Sections
1471 through 1474 of the Internal Revenue Code (commonly referred to as “FATCA”) impose a separate reporting regime
and potentially a 30% withholding tax on certain payments, including payments of dividends on our shares of common stock, pre-funded
warrants and warrant shares. Withholding under FATCA generally applies to payments made to or through a foreign entity if such entity
fails to satisfy certain disclosure and reporting rules. These rules generally require (i) in the case of a foreign financial institution,
that the financial institution agree to identify and provide information in respect of financial accounts held (directly or indirectly)
by U.S. persons and U.S.-owned entities, and, in certain instances, to withhold on payments to account holders that fail to provide the
required information, and (ii) in the case of a non-financial foreign entity, that the entity either identify and provide information
in respect of its substantial U.S. owners or certify that it has no such U.S. owners.
FATCA
withholding also potentially applies to payments of gross proceeds from the sale or other disposition of our shares of common stock,
pre-funded warrants and warrant shares. Proposed U.S. Treasury Regulations, however, would eliminate FATCA withholding on such payments,
and the U.S. Treasury Department has indicated that taxpayers may rely on this aspect of the proposed U.S. Treasury Regulations until
final U.S. Treasury Regulations are issued.
Non-U.S.
holders typically will be required to furnish certifications (generally on the applicable IRS Form W-8) or other documentation to provide
the information required by FATCA or to establish compliance with or an exemption from withholding under FATCA. FATCA withholding may
apply where payments are made through a non-U.S. intermediary that is not FATCA compliant, even where the non-U.S. holder satisfies the
holder’s own FATCA obligations.
The
United States and a number of other jurisdictions have entered into intergovernmental agreements to facilitate the implementation of
FATCA. Any applicable intergovernmental agreement may alter one or more of the FATCA information reporting and withholding requirements.
You are encouraged to consult with your own tax advisor regarding the possible implications of FATCA on your investment in our shares
of common stock, pre-funded warrants or warrant shares, including the applicability of any intergovernmental agreements.
THE
ABOVE SUMMARY IS NOT INTENDED TO CONSTITUTE A COMPLETE ANALYSIS OF ALL TAX CONSIDERATIONS APPLICABLE TO PROSPECTIVE INVESTORS WITH RESPECT
TO THE ACQUISITION, OWNERSHIP, AND DISPOSITION OF UNITS, PRE-FUNDED UNITS, SHARES OF COMMON STOCK, PRE-FUNDED WARRANTS, CLASS E WARRANTS
OR WARRANT SHARES. PROSPECTIVE INVESTORS SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE TAX CONSIDERATIONS APPLICABLE TO THEM IN LIGHT
OF THEIR OWN PARTICULAR CIRCUMSTANCES.
LEGAL
MATTERS
The
validity of the securities offered hereby will be passed upon for us by Dorsey & Whitney LLP, Salt Lake City, Utah. The placement
agent is being represented by Ellenoff Grossman & Schole LLP, New York, New York.
EXPERTS
The
consolidated financial statements of SINTX Technologies, Inc., as of December 31, 2022 and 2021, and for each of the years in the two-year
period ended December 31, 2022, have been incorporated by reference herein in reliance on the report of Tanner LLC, an independent registered
public accounting firm, given on the authority of said firm as experts in auditing and accounting. Such financial statements have been
incorporated herein by reference in reliance on the report of such firm given upon their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and other reports, proxy statements and other information with the SEC. Our SEC filings are available to the public
over the Internet at the SEC’s website at http://www.sec.gov. Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and
Current Reports on Form 8-K, including any amendments to those reports, and other information that we file with or furnish to the SEC
pursuant to Section 13(a) or 15(d) of the Exchange Act can also be accessed free of charge through the Internet. These filings will be
available as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. You may also
access these filings through our website at www.sintx.com.
We
have filed with the SEC a registration statement under the Securities Act relating to the offering of these securities. The registration
statement, including the attached exhibits, contains additional relevant information about us and the securities. This prospectus does
not contain all of the information set forth in the registration statement. You can obtain a copy of the registration statement, at prescribed
rates, from the SEC at the address listed above. The registration statement, along with our most recent annual report on Form 10-K, subsequent
reports on Form 10-Q and current reports on Form 8-K, as well as other filings that we make with the SEC, are also available on our Internet
website, www.sintx.com. We have not incorporated by reference into this prospectus the information on our website, and you should not
consider it to be a part of this prospectus.
INCORPORATION
BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with it into this prospectus, which means that we can
disclose important information to you by referring you to those documents. The information incorporated by reference is an important
part of this prospectus. The information incorporated by reference is considered to be a part of this prospectus, and information that
we file later with the Commission will automatically update and supersede information contained in this prospectus and any accompanying
prospectus supplement. We incorporate by reference the documents listed below that we have previously filed with the Commission:
|
(a) |
The
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022; |
|
|
|
|
(b) |
The
Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2023 and June 30, 2023; |
|
|
|
|
(c) |
Our Definitive Proxy Statement on Schedule 14A (other
than information furnished rather than filed), filed with the SEC on October 25, 2023, as amended on October 26, 2023; |
|
|
|
|
(d) |
The
Company’s Current Reports on Form 8-K filed with the SEC on January
13, 2023, February
9, 2023, October
11, 2023, October
12, 2023, and October 20, 2023; and |
|
|
|
|
(e) |
The
description of the Company’s common stock, which is contained in the Registration Statement on Form 8-A, as filed with the
SEC on February 7, 2014, as updated by the description of our common stock contained in Exhibit 4.18 to our Annual Report on Form
10-K for the year ended December 31, 2022, including any amendment or report filed for the purpose of updating such description. |
We
also incorporate by reference any future filings (other than Current Reports furnished under Items 2.02 or 7.01 of Form 8-K and exhibits
filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing of the registration statement of which
this prospectus is a part and prior to effectiveness of the registration statement, and (ii) after the effectiveness of the registration
statement but prior to the termination of the offering of the securities covered by this prospectus, excluding, in each case, information
deemed furnished and not filed.
Any
statement contained in this prospectus, or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded to the extent that a statement contained herein, or in any subsequently filed document that also is incorporated
or deemed to be incorporated by reference herein, modifies or supersedes such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We
will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request,
a copy of any or all of the information that has been incorporated by reference into this prospectus but not delivered with the prospectus,
including exhibits that are specifically incorporated by reference into such documents. Requests should be directed to: SINTX Technologies,
Inc., Attention: Investor Relations, 1885 West 2100 South, Salt Lake City, Utah 84119 and our telephone number is (801) 839-3500. You
may also access the documents incorporated by reference in this prospectus through our website at www.sintx.com. Except for the specific
incorporated documents listed above, no information available on or through our website shall be deemed to be incorporated in this prospectus
or the registration statement of which it forms a part.
Up
to 11,103,708 Units, Each Unit Consisting of One Share of Common Stock or One Pre-Funded Warrant and One Class E Warrant to Purchase
One Share of Common Stock
444,148
Placement Agent Warrants to Purchase an Aggregate
of Up To 444,148 Shares of Common Stock
Up
to 22,651,564 Shares of Common Stock Issuable upon the Exercise of the Pre-Funded Warrants, Class E Warrants, and Placement Agent
Warrants
PROSPECTUS
Maxim
Group LLC
,
2023
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution
The
following is a statement of estimated expenses in connection with the issuance and distribution of the securities being registered, excluding
dealer-manager fees. All expenses incurred with respect to the registration of the common stock will be borne by us. All amounts are
estimates except the SEC registration fee and the FINRA filing fee.
Item |
|
Amount
to be
Paid |
|
SEC
registration fee |
|
$ |
1,657 |
|
FINRA
filing fee |
|
$ |
2,183 |
|
Legal
fees and expenses |
|
$ |
200,000 |
|
Accounting
fees and expenses |
|
$ |
80,000 |
|
Transfer
Agent Fees and Expenses |
|
$ |
15,000 |
|
Miscellaneous
expenses |
|
$ |
10,000 |
|
Total |
|
$ |
308,840 |
|
Item
14. Indemnification of Directors and Officers
Our
Restated Certificate of Incorporation and Restated Bylaws provide that each person who was or is made a party or is threatened to be
made a party to or is otherwise involved (including, without limitation, as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she is or was one of our directors or officers or is or was
serving at our request as a director, officer, member, manager or trustee of another corporation, or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit plan, whether the basis of such proceeding is alleged
action in an official capacity as a director, officer or trustee or in any other capacity while serving as a director, officer or trustee,
shall be indemnified and held harmless by us to the fullest extent authorized by the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits us to provide broader
indemnification rights than such law permitted us to provide prior to such amendment) against all expense, liability and loss (including
attorneys’ fees, judgments, fines, Employee Retirement Income Security Act excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such indemnitee in connection therewith. These provisions limit the liability of our directors and
officers to the fullest extent permitted under Delaware law. A director will not receive indemnification if he or she is found not to
have acted in good faith.
Section
145 of the Delaware General Corporation Law permits a corporation to indemnify any director or officer of the corporation against expenses
(including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with
any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if
such person acted in good faith and in a manner that he reasonably believed to be in, or not opposed to, the best interests of the corporation,
and, with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe his or her conduct was unlawful.
In a derivative action (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually
and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person
acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation,
except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and
only to the extent that the court in which the action or suit was brought shall determine that such person is fairly and reasonably entitled
to indemnity for such expenses despite such adjudication of liability.
Pursuant
to Section 102(b)(7) of the Delaware General Corporation Law, Article Eighth of our Restated Certificate of Incorporation eliminates
the liability of a director to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except
for liabilities arising:
|
● |
from
any breach of the director’s duty of loyalty to us or our stockholders; |
|
|
|
|
● |
from
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
|
|
|
|
● |
under
Section 174 of the Delaware General Corporation Law; or |
|
|
|
|
● |
from
any transaction from which the director derived an improper personal benefit. |
We
carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as directors
and officers. We have entered into indemnification agreements with certain of our executive officers and directors. These agreements,
among other things, indemnify and advance expenses to our directors and officers for certain expenses, including attorney’s fees,
judgments, fines and settlement amounts incurred by any such person in any action or proceeding, including any action by us arising out
of such person’s services as our director or officer, or any other company or enterprise to which the person provides services
at our request. We believe that these provisions and agreements are necessary to attract and retain qualified persons as directors and
officers. We have entered into agreements to indemnify all of our directors and officers.
In
addition, the Registrant has entered into indemnification agreements with each of its current directors and executive officers. These
agreements will require the Registrant to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities
that may arise by reason of their service to the Registrant and to advance expenses incurred as a result of any proceeding against them
as to which they could be indemnified. The Registrant also intends to enter into indemnification agreements with its future directors
and executive officers.
Item
15. Recent Sales of Unregistered Securities.
Maxim
and Ascendiant October 2022 Warrants
In
connection with the October 2022 Rights Offering, the Company issued (i) to Maxim, as the dealer-manager in the October 2022 Rights Offering,
10,483 warrants to purchase shares of the Company’s common stock and (ii) to Ascendiant, as a financial advisor to the Company
in the October 2022 Rights Offering, 1,850 warrants to purchase shares of the Company’s common stock (collectively, the “Dealer
Manager Warrants”). The Dealer Manager Warrants are non-exercisable for 6 months from October 17, 2022 and will expire on September
23, 2027. The Dealer Manager Warrants will be exercisable at a price of $16.61 per share, subject to adjustment for stock dividends,
distributions, subdivisions, combinations, or reclassifications, and for certain dilutive issuances. The Company relied on the exemption
from registration available under Section 4(a)(2) of the Securities Act in connection with the issuance of the Dealer Manager Warrants
to Maxim and Ascendiant.
Item
16. Exhibits and Financial Statement Schedules.
(a)
Exhibits
The
following exhibits are being filed with this Registration Statement:
10.1 |
|
Centrepointe
Business Park Lease Agreement Net by and between the Registrant and Centrepointe Properties, LLC, dated as of April 21, 2009 |
|
|
|
Form
S-1 (Exhibit 10.10) |
|
11/8/13 |
|
333-192232 |
|
|
|
|
|
|
|
|
|
|
|
10.2 |
|
First
Addendum to Centrepointe Business Park Lease Agreement Net by and between the Registrant and Centrepointe Properties, LLC, dated
as of January 31, 2012 |
|
|
|
Form
S-1 (Exhibit 10.11) |
|
11/8/13 |
|
333-192232 |
|
|
|
|
|
|
|
|
|
|
|
10.3 |
|
Form
of Change of Control Agreement* |
|
|
|
Form
8-K (Exhibit 10.1) |
|
7/22/15 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.4 |
|
Form
of Indemnification Agreement by and between the Registrant and its officers and directors |
|
|
|
Amendment
No. 2
to
Form S-1 (Exhibit 10.14) |
|
12/20/13 |
|
333-192232 |
|
|
|
|
|
|
|
|
|
|
|
10.5 |
|
Exchange
Agreement dated April 4, 2016, by and among SINTX Corporation and Riverside Merchant Partners, LLC |
|
|
|
Form
8-K (Exhibit 10.2) |
|
5/05/16 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.6 |
|
Form
of Warrant Amendment Agreement |
|
|
|
Form
S-1 (Exhibit 10.26) |
|
4/26/18 |
|
333-223032 |
|
|
|
|
|
|
|
|
|
|
|
10.7 |
|
Amendment
to Centrepointe Business Park Lease Agreement, dated June 7, 2019, between SINTX Technologies, Inc. and Centrepointe Properties,
LLC. |
|
|
|
Form
8-K (Exhibit 10.1) |
|
6/10/19 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.8 |
|
Promissory
Note issued by CTL Corporation in favor of Amedica Corporation dated as of October 1, 2018. |
|
|
|
Form
8-K (Exhibit 10.1) |
|
10/5/18 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.9 |
|
Security
Agreement between Amedica Corporation and CTL Corporation dated as of October 1, 2018. |
|
|
|
Form
8-K (Exhibit 10.2) |
|
10/5/18 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.10 |
|
Guaranty
between Amedica Corporation and Daniel Chon dated as of October 1, 2018. |
|
|
|
Form
8-K (Exhibit 10.3) |
|
10/5/18 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.11 |
|
ROFN
Security Agreement between Amedica Corporation and CTL Corporation dated as of October 1, 2018. |
|
|
|
From
8-K (Exhibit 10.4) |
|
10/5/18 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.12 |
|
Promissory
Note, dated April 28, 2020 between SINTX Technologies, Inc. and First State Community Bank. |
|
|
|
Form
8-K (Exhibit 10.1) |
|
4/30/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.13 |
|
Form
of Share Purchase Agreement |
|
|
|
Form
8-K (Exhibit 99.1) |
|
6/29/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.14 |
|
Placement
Agency Agreement |
|
|
|
Form
8-K (Exhibit 99.2) |
|
6/29/20 |
|
001-33624 |
10.15 |
|
Form
of Share Purchase Agreement |
|
|
|
Form
8-K (Exhibit 99.1) |
|
7/20/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.16 |
|
Placement
Agency Agreement |
|
|
|
Form
8-K (Exhibit 99.2) |
|
7/20/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.17 |
|
Form
of Share Purchase Agreement |
|
|
|
Form
8-K (Exhibit 99.1) |
|
8/6/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.18 |
|
Placement
Agency Agreement |
|
|
|
Form
8-K (Exhibit 99.2) |
|
8/6/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.19 |
|
Form
of Indenture |
|
|
|
Form
S-3 (Exhibit 4.18) |
|
10/2/20 |
|
333-249267 |
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10.20 |
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Equity
Distribution Agreement, dated as of February 25, 2021, by and between SINTX Technologies, Inc. and Maxim Group LLC |
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Form
8-K (Exhibit 10.1) |
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2/26/20 |
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001-33624 |
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10.21 |
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2020
Equity Incentive Plan |
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Defn
14a Proxy Statement |
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7/10/2020 |
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001-33624 |
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10.22 |
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Form
of Warrant Agency Agreement between SINTX Technologies, Inc. and American Stock Transfer & Trust Company, LLC |
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Form
8-K (Exhibit 10.1) |
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10/17/22 |
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001-33624 |
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10.23 |
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Amendment
to Equity Distribution Agreement, dated as of January 10, 2023 by and between SINTX Technologies, Inc., and Maxim Group LLC |
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Form
8-K (Exhibit 10.1) |
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1/13/23 |
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10.24 |
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Form
of Securities Purchase Agreement |
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Form
8-K (Exhibit 10.1) |
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2/9/23 |
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001-33624 |
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10.25 |
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Form
of Placement Agent Agreement |
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Form
S-1 (Exhibit 10.25) |
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2/6/23 |
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333-269475 |
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10.26 |
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Form of Securities Purchase Agreement |
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X |
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10.27 |
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Form of Placement Agent Agreement |
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X |
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21.1 |
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List of Subsidiaries |
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Form
10-K (Exhibit 21.1) |
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3/29/23 |
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001-33624 |
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23.1 |
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Consent of Independent Registered Public Accounting Firm, Tanner LLC |
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Form
S-1 (Exhibit 23.1) |
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10/23/23 |
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333-275137 |
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23.2 |
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Consent of Dorsey & Whitney LLP (included in Exhibit 5.1) |
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X |
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24.1 |
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Power of Attorney (Signature Block) |
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Form
S-1 (Exhibit 24.1) |
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10/23/23 |
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333-275137 |
101.INS |
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Inline
XBRL Instance Document. |
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X |
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101.CAL |
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Inline
XBRL Taxonomy Extension Calculation Linkbase Document. |
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X |
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101.SCH |
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Inline
XBRL Taxonomy Extension Schema Document. |
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X |
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101.DEF |
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Inline
XBRL Taxonomy Extension Definition Linkbase Document. |
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X |
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101.LAB |
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Inline
XBRL Taxonomy Extension Labels Linkbase Document. |
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X |
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101.PRE |
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Inline
XBRL Taxonomy Extension Presentation Linkbase Document. |
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X |
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104 |
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Cover
Page Interactive Data File (embedded within the Inline XBRL document). |
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X |
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107 |
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Filing Fee Table |
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Form
S-1 (Exhibit 107) |
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10/23/23 |
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333-275137 |
*
Indicates management contract or compensatory plan or arrangement.
+
Schedules and exhibits to this Exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish
supplementally a copy of any omitted schedule or exhibit to the SEC upon request.
†
A portion of this Exhibit has been omitted as it contains information that (i) is not material and (ii) would be competitively harmful
if publicly disclosed.
(b)
Financial Statement Schedules
All
schedules have been omitted because either they are not required, are not applicable or the information is otherwise set forth in the
financial statements and related notes thereto.
Item
17. Undertakings
(a) |
The
undersigned registrant hereby undertakes: |
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(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) |
To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
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(ii) |
To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
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(iii) |
To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement. |
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Provided,
however, that paragraphs (a)(1)(i), (ii) and (iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. |
(2) |
That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. |
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(3) |
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering. |
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(4) |
That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser: |
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(i) |
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; |
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(ii) |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant; |
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(iii) |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
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(iv) |
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) |
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue. |
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(c) |
The
undersigned registrant hereby undertakes that: |
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(1) |
For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time
it was declared effective; and |
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(2) |
For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in Salt Lake City, Utah on November 2, 2023.
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SINTX
TECHNOLOGIES, INC. |
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By: |
/s/
B. Sonny Bal |
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B.
Sonny Bal, M.D. |
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Chief
Executive Officer and President |
We,
the undersigned directors and officers of Sintx Technologies, Inc. (the “Company”), hereby severally constitute and appoint
B. Sonny Bal, MD as our true and lawful attorney, with full power to him to sign for us and in our names in the capacities indicated
below, the registration statement on Form S-1 filed herewith, and any and all pre-effective and post-effective amendments to said registration
statement, and any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, in connection with
the registration under the Securities Act of 1933, as amended, of equity securities of the Company, and to file or cause to be filed
the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as each of us might or could do in person, and hereby ratifying and confirming all that
said attorney or his substitute or substitutes, shall do or cause to be done by virtue of this Power of Attorney.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated:
SIGNATURE |
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TITLE |
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DATE |
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/s/
B. Sonny Bal |
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November
2, 2023 |
B.
Sonny Bal, M.D. |
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Chief
Executive Officer and Director |
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(Principal
Executive Officer and Principal Financial Officer) |
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* |
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November
2, 2023 |
David
W. Truetzel |
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Director |
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* |
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November
2, 2023 |
Jeffrey
S. White |
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Director |
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* |
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November
2, 2023 |
Eric
A. Stookey |
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Director |
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* |
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November
2, 2023 |
Marc
Froimson |
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Director |
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*By: | /s/
B. Sonny Bal |
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| B. Sonny Bal, M.D. |
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| Attorney-in-Fact |
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Exhibit
4.16
PRE-FUNDED
COMMON STOCK PURCHASE WARRANT
SINTX
TECHNOLOGIES, INC.
Warrant
Shares: _______ |
Initial
Exercise Date: _______, 2023 |
THIS
PRE-FUNDED COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its
assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time on or after the date hereof (the “Initial Exercise Date”) and until this Warrant is exercised
in full (the “Termination Date”) but not thereafter, to subscribe for and purchase from SINTX Technologies, Inc.,
a Delaware corporation (the “Company”), up to ______ shares (as subject to adjustment hereunder, the “Warrant
Shares”) of Common Stock. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise
Price, as defined in Section 2(b). This Warrant shall initially be issued and maintained in the form of a security held in book-entry
form and the Depository Trust Company or its nominee (“DTC”) shall initially be the sole registered holder of this
Warrant, subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant Agency
Agreement, in which case this sentence shall not apply.
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meaning set forth in that certain Securities
Purchase Agreement (the “Purchase Agreement”), dated _______, 2023, among the Company and the purchasers signatory
thereto:
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF
copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”).
Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the
shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless
the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to
the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full,
in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which
the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the
total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records
showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice
of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge
and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the
number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
Notwithstanding
the foregoing in this Section 2(a), a holder whose interest in this Warrant is a beneficial interest in certificate(s) representing this
Warrant held in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect
exercises made pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate
instruction form for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation,
as applicable), subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant
Agency Agreement, in which case this sentence shall not apply.
b)
Exercise Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.0001 per Warrant Share,
was pre-funded to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the
nominal exercise price of $0.0001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise
of this Warrant. The Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise
price under any circumstance or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to
the Termination Date. The remaining unpaid exercise price per share of Common Stock under this Warrant shall be $0.0001, subject to adjustment
hereunder (the “Exercise Price”).
c)
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in
whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
|
(A)
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=
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as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of
the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of
the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading
hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of
“regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
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(B)
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=
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the
Exercise Price of this Warrant, as adjusted hereunder; and |
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(X)
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=
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the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
d)
Mechanics of Exercise.
i.
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by
the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery
of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant
Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by
the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading
Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement
Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares,
provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier
of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice
of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant
Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant
Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading
Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such
Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain
a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein,
“Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s
primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding
the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City time) on the Initial Exercise
Date, which may be delivered at any time after the time of execution of the Purchase Agreement, the Company agrees to deliver the Warrant
Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be
the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case
of a cashless exercise) is received by such Warrant Share Delivery Date.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant is not held in global form through DTC (or any successor depositary) and
if this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate,
at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the
unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of
a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then
outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder,
upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that
the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after
giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section
2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day
after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective
or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b)
Reserved.
c)
Subsequent Rights Offerings. In addition to (but without duplication of) any adjustments pursuant to Section 3(a) above, if at
any time the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other
property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder
will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could
have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the
date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided,
however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall
be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation).
d)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent
(or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such
Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result
in the Holder exceeding the Beneficial Ownership Limitation). To the extent that this Warrant has not been partially or completely exercised
at the time of such Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the
Holder has exercised this Warrant.
e)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person (other than a transaction solely
to change the domicile of the Company), (ii) the Company or any Subsidiary, directly or indirectly, effects any sale, lease, license,
assignment, transfer, conveyance or other disposition of all or substantially all of the Company’s assets in one or a series of
related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another
Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities,
cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the outstanding
voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common
Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly,
in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby
such other Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the outstanding voting power
of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this
Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e)
on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if
it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a
result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately
prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes
of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and
the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value
of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash
or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in
a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all
of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements
in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental
Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity
evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding
number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable
and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental
Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account
the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock,
such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant
immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to
the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so
that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall
refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
f)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party (other
than a transaction solely to change the domicile of the Company), any sale or transfer of all or substantially all of the Company’s
assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company
shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case,
the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register
of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record
is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption,
rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share
exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record
shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain
entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering
such notice except as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. If this Warrant is not held in global form through DTC (or any successor depositary), this Warrant may be divided
or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying
the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance
with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a
new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants
issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except
as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Warrant Agent shall register this Warrant, upon records to be maintained by the Warrant Agent for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company and the Warrant Agent
may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined
in accordance with the provisions of the Purchase Agreement.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant or the Purchase Agreement,
which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover
any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred
by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Purchase Agreement.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on
the one hand, and the Holder or the beneficial owner of this Warrant, on the other hand.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
o)
Warrant Agency Agreement. If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued
subject to the Warrant Agency Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant
Agency Agreement, the provisions of this Warrant shall govern and be controlling.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
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SINTX
TECHNOLOGIES, INC. |
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By: |
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Name: |
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Title: |
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NOTICE
OF EXERCISE
To:
SINTX TECHNOLOGIES, INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[
] in lawful money of the United States; or
[
] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________
Date:
________________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please
Print) |
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Address: |
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(Please
Print) |
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Phone
Number: |
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Email
Address: |
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Dated:
_______________ __, ______ |
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Holder’s
Signature: _______________________ |
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Holder’s
Address: ________________________ |
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Exhibit
4.17
CLASS
E COMMON STOCK PURCHASE WARRANT
SINTX
TECHNOLOGIES, INC.
Warrant
Shares: _______ |
Initial
Exercise Date: _______, 2023 |
THIS
CLASS E COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns
(the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time on or after the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New
York City time) on _______, 2028 (the “Termination Date”) but not thereafter, to subscribe for and purchase from Sintx
Technologies, Inc., a Delaware corporation (the “Company”), up to ______ shares (as subject to adjustment hereunder,
the “Warrant Shares”) of Common Stock. The purchase price of one share of Common Stock under this Warrant shall be
equal to the Exercise Price, as defined in Section 2(b). This Warrant shall initially be issued and maintained in the form of a security
held in book-entry form and the Depository Trust Company or its nominee (“DTC”) shall initially be the sole registered
holder of this Warrant, subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of
the Warrant Agency Agreement, in which case this sentence shall not apply.
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meaning set forth in that certain
Securities Purchase Agreement (the “Purchase Agreement”), dated _______, 2023, among the Company and the
purchasers signatory thereto:
Section
2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times
on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy
submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of
Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard
Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the
aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check
drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable
Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of
guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall
not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares
available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the
Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the
Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available
hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the
applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant
Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1)
Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that,
by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of
Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face
hereof.
Notwithstanding
the foregoing in this Section 2(a), a Holder whose interest in this Warrant is a beneficial interest in certificate(s) representing this
Warrant held in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect
exercises made pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate
instruction form for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation,
as applicable), subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant
Agency Agreement, in which case this sentence shall not apply.
b) Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $_____, subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may only be exercised, in whole or in
part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
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(A)= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of
the Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of
the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading
Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours”
on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date
of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof
after the close of “regular trading hours” on such Trading Day; |
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(B)=
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the Exercise Price of this Warrant, as adjusted hereunder; and |
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(X)= |
the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if
such exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
d) Mechanics of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant is not held in global form through DTC (or any successor depositary) and if this warrant
shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the
time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by
its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. Except as set forth in Section 2(c), as to any fraction of a share which the Holder would otherwise be entitled to purchase
upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal
to such fraction multiplied by the Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and
such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of
a Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder,
upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that
the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after
giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section
2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day
after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective
or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b) Reserved.
c) Subsequent
Rights Offerings. In addition to (but without duplication of) any adjustments pursuant to Section 3(a) above, if at any time the
Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro
rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be
entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired
if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any
limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which
a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record
holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that,
to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership
of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held
in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
d) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete
exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership
Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent
(or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such
Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result
in the Holder exceeding the Beneficial Ownership Limitation). To the extent that this Warrant has not been partially or completely exercised
at the time of such Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the
Holder has exercised this Warrant.
e) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person (other than a transaction solely to change the domicile
of the Company), (ii) the Company or any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer,
conveyance or other disposition of all or substantially all of the Company’s assets in one or a series of related transactions,
(iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed
pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property
and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the outstanding voting power of
the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification,
reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related
transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization,
recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group
acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the outstanding voting power of the common equity of
the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall
have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this
Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor
Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the
consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction),
purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of
the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however,
that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of
Directors, Holder shall only be entitled to receive from the Company or any Successor Entity, as of the date of the consummation of such
Fundamental Transaction, the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised
portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental
Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock
are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction. “Black
Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable contemplated
Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for
a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination
Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg
(determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable
contemplated Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum
of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental
Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding the public announcement of
the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending
on the Trading Day of the Holder’s request pursuant to this Section 3(e) and (D) a remaining option time equal to the time between
the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date and (E) a zero cost
of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration)
within five Business Days of the Holder’s election (or, if later, on the date of consummation of the Fundamental Transaction).
The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor
Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of
this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder
(without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange
for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to
this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity)
equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on
the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder
to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental
Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the
purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and
which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor
Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this
Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of
the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity
had been named as the Company herein.
f) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall
authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock
of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification
of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party (other than a transaction
solely to change the domicile of the Company), any sale or transfer of all or substantially all of the Company’s assets, or any
compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize
the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall
cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company, at
least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which
a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken,
the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or
warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange
is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be
entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain
entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering
such notice except as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
a) Transferability.
This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part,
upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of
this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay
any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute
and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. If this Warrant is not held in global form through DTC (or any successor depositary), this Warrant may be divided or combined
with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names
and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section
4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers
or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except as to the number
of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Warrant Agent shall register this Warrant, upon records to be maintained by the Warrant Agent for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company and the Warrant Agent
may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set
forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to
Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required
to net cash settle an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
d) Authorized
Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York,
Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of
this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices.
Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any
Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service,
addressed to the Company, at 1885 West 2100 South, Salt Lake City, Utah, 84119, Attention: Chief Executive Officer, email address: sbal@sintx.com,
or such other email address or address as the Company may specify for such purposes by notice to the Holders. Any and all notices or
other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or
sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing
on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest
of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section
prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication
is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. To the extent that any
notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company
shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
the Holder or the beneficial owner of this Warrant, on the other hand.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
o) Warrant
Agency Agreement. If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued subject
to the Warrant Agency Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant Agency
Agreement, the provisions of this Warrant shall govern and be controlling.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
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SINTX
TECHNOLOGIES, INC. |
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By: |
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Name: |
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Title: |
NOTICE
OF EXERCISE
To: |
SINTX
TECHNOLOGIES, INC. |
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
[
] in lawful money of the United States; or
[
] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________
Date:
________________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please
Print) |
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Address: |
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(Please Print)
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Phone
Number:
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Email
Address: |
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Dated:
_______________ __, _______ |
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Holder’s
Signature:_______________________ |
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Holder’s
Address:________________________ |
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Exhibit
4.18
PLACEMENT
AGENT COMMON STOCK PURCHASE WARRANT
SINTX
TECHNOLOGIES, INC.
Warrant
Shares: _______1 |
Initial
Exercise Date: _______, 20232 |
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Issue
Date: ________, 2023 |
THIS
PLACEMENT AGENT COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or
its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the date referred to above as the Initial Exercise Date (the “Initial Exercise
Date”) and on or prior to 5:00 p.m. (New York City time) on _______, 20__3 (the “Termination Date”)
but not thereafter, to subscribe for and purchase from Sintx Technologies, Inc., a Delaware corporation (the “Company”),
up to ______ shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price
of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meaning set forth in that certain Placement
Agency Agreement (the “Placement Agency Agreement”), dated _______, 2023, among the Company and Maxim Group LLC.
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF
copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”).
Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the
shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless
the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to
the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full,
in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which
the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the
total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records
showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice
of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge
and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the
number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
1
Insert 4% of total Units sold in the Offering
2
Insert the six month anniversary of the effective date of the Registration Statement
3
Insert the date that is the five year anniversary of the commencement of sales in this offering
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $_____4, subject to adjustment
hereunder (the “Exercise Price”).
c)
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may only be exercised, in
whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
|
(A) |
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of
the Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of
the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading
Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours”
on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date
of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof
after the close of “regular trading hours” on such Trading Day; |
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(B) |
=
|
the
Exercise Price of this Warrant, as adjusted hereunder; and |
|
|
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(X) |
= |
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
4
Insert 110% of the public offering price of the Units
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Holder and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
d)
Mechanics of Exercise.
i.
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by
the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a
certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares
to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date
that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day
after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement
Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares,
provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier
of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice
of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant
Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant
Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading
Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such
Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain
a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein,
“Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s
primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of
a Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder,
upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that
the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after
giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section
2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day
after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective
or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification. For purposes of clarification, the Exercise Price of this
Warrant will not be adjusted in the event that the Company or any subsidiary thereof, as applicable, sells or grants any option to purchase,
or sell or grant any right to reprice, or otherwise disposes of or issues (or announces any offer, sale, grant, or any option to purchase
or other disposition) any Common Stock or Common Stock Equivalents, at an effective price per share less than the Exercise Price then
in effect.
b)
Reserved.
c)
Subsequent Rights Offerings. In addition to (but without duplication of) any adjustments pursuant to Section 3(a) above, if at
any time the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other
property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder
will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could
have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the
date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided,
however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall
be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation).
d)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise other than cash (including, without limitation, any distribution of stock or other securities, property or options by way
of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent
(or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such
Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result
in the Holder exceeding the Beneficial Ownership Limitation). To the extent that this Warrant has not been partially or completely exercised
at the time of such Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the
Holder has exercised this Warrant.
e)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person (other than a transaction solely
to change the domicile of the Company), (ii) the Company or any Subsidiary, directly or indirectly, effects any sale, lease, license,
assignment, transfer, conveyance or other disposition of all or substantially all of the Company’s assets in one or a series of
related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another
Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities,
cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the outstanding
voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common
Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly,
in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby
such other Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the outstanding voting power
of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this
Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e)
on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if
it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a
result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately
prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes
of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and
the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value
of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash
or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in
a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all
of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements
in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental
Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity
evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding
number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable
and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental
Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account
the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock,
such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant
immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to
the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so
that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall
refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
f)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party (other
than a transaction solely to change the domicile of the Company), any sale or transfer of all or substantially all of the Company’s
assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company
shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case,
the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register
of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record
is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption,
rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share
exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record
shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain
entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering
such notice except as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. Pursuant to FINRA Rule 5110(e)(1), neither this Warrant nor any Warrant Shares issued upon exercise of this Warrant
shall be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative, put or call
transaction that would result in the effective economic disposition of the securities by any person for a period of 180 days immediately
following the commencement of sales of the offering pursuant to which this Warrant is being issued, except as permitted under FINRA Rule
5110(e)(2). Subject to the foregoing restriction, this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender
of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially
in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable
upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant
or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this
Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
d)
Representation by Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and,
upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or
for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
Section
5. Registration Rights
a)
Demand Registration
i.
Grant of Right. At any time prior to the Termination Date, the Company, upon written demand (“Initial Demand Notice”)
of the Holder(s) of at least 51% of the Warrant Shares (“Majority Holders”), agrees to register (the “Demand Registration”)
under the Securities Act all or any portion of the Warrant Shares requested by the Majority Holders in the Initial Demand Notice (the
“Registrable Securities”). On each occasion, the Company will file a registration statement covering the Registrable Securities
within 60 days after receipt of the Initial Demand Notice and use its reasonable best efforts to and have such registration statement
declared effective as soon as possible thereafter, subject to compliance with review by the Commission. The demand for registration may
be made at any time during which the Majority Holders hold any of the Warrant Shares. Notwithstanding the foregoing, the Company shall
not be required to effect a registration pursuant to this Section 5 a): (A) with respect to securities that are not Registrable Securities;
(B) during any Scheduled Black-Out Period; (C) if the aggregate offering price of the Registrable Securities to be offered is less than
$250,000, unless the Registrable Securities to be offered constitute all of the then-outstanding Registrable Securities; or (D) within
180 days after the effective date of a prior registration in respect of the Common Stock, including a Demand Registration (or, in the
event that Holders were prevented from including any Registrable Securities requested to be included in a Piggyback Registration pursuant
to Section 5(b), within 90 days after the effective date of such prior registration in respect of the Common Stock. For purposes of this
agreement, a “Scheduled Black-Out Period” shall means the periods from and including the day that is ten days prior to the
last day of a fiscal quarter of the Company to and including the day that is two days after the day on which the Company publicly releases
its earnings for such fiscal quarter. The Initial Demand Notice shall specify the number of shares of Registrable Securities proposed
to be sold and the intended method(s) of distribution thereof. The Company will notify all holders of the Warrant Shares of the demand
within ten days from the date of the receipt of any such Initial Demand Notice. Each holder of the Warrant Shares who wishes to include
all or a portion of such holder’s Warrant Shares in the Demand Registration (each such holder including shares of Registrable Securities
in such registration, a “Demanding Holder”) shall so notify the Company within 15 days after the receipt by the holder of
the notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have their Warrant Shares included in
the Demand Registration. Notwithstanding anything to the contrary in this Section 5(a), the Company shall not be required to register
such Registrable Securities pursuant to this Section 5(a) that are eligible for resale pursuant to Rule 144 promulgated under the Securities
Act.
ii.
Effective Registration. A registration will not count as a Demand Registration until the registration statement filed with the
Commission with respect to such Demand Registration has been declared effective and the Company has complied with all of its obligations
under this Warrant with respect thereto.
iii.
Terms. The Holder shall bear all fees and expenses attendant to registering the Registrable Securities, including the expenses
of any legal counsel selected by the Company to represent it in connection with the sale of the Registrable Securities. The Company agrees
to qualify or register the Registrable Securities in such states as are reasonably requested by the Majority Holder(s); provided, however,
that in no event shall the Company be required to register the Registrable Securities in a state in which such registration would cause
(i) the Company to be obligated to qualify to do business in such state, or would subject the Company to taxation as a foreign corporation
doing business in such jurisdiction or (ii) the principal shareholders of the Company to be obligated to escrow their shares of capital
stock of the Company. The Company shall cause any registration statement filed pursuant to the demand rights granted under Section 5(a)(i)
to remain effective until all Registrable Securities are sold
iv.
Notwithstanding the foregoing, if the Board of Directors of the Company determines in its good faith judgment that the filing of a registration
statement in connection with a Demand Registration (i) would be seriously detrimental to the Company in that such registration would
interfere with a material corporate transaction or (ii) would require the disclosure of material non-public information concerning the
Company that at the time is not, in the good faith judgment of the Board of Directors, in the best interests of the Company to disclose
and is not, in the opinion of the Company’s counsel, otherwise required to be disclosed, then the Company shall have the right
to defer such filing for the period during which such registration would be seriously detrimental under clause (i) or would require such
disclosure under clause (ii); provided, however, that (x) the Company may not defer such filing for a period of more than 90 days after
receipt of any demand by the Holders and (y) the Company shall not exercise its right to defer a Demand Registration more than once in
any 12-month period. The Company shall give written notice of its determination to the Holders to defer the filing and of the fact that
the purpose for such deferral no longer exists, in each case, promptly after the occurrence thereof.
b)
Piggy-Back Registration
i.
Piggy-Back Rights. If at any time during the five (5) year period after the Effective Date in which the Registrable Securities
are outstanding, the Company proposes to file a registration statement under the Securities Act with respect to an offering of equity
securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, by the Company
for its own account or for shareholders of the Company for their account (or by the Company and by shareholders of the Company including,
without limitation, pursuant to Section 5(a)), other than a registration statement (i) filed in connection with any employee share option
or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing shareholders, or (iii)
for a dividend reinvestment plan, then the Company shall (x) give written notice of such proposed filing to the holders of Registrable
Securities as soon as practicable but in no event less than ten days before the anticipated filing date, which notice shall describe
the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed
managing underwriter or underwriters, if any, of the offering, and (y) offer to the holders of Registrable Securities in such notice
the opportunity to register the sale of such number of Warrant Shares held by such holder (the “Piggy-Back Registrable Securities”),
as such holders may request in writing within five days following receipt of such notice (a “Piggy-Back Registration”).
The Company shall cause such Piggy-Back Registrable Securities to be included in such registration and shall cause the managing underwriter
or underwriters of a proposed underwritten offering to permit the Piggy-Back Registrable Securities requested to be included in a Piggy-Back
Registration on the same terms and conditions as any similar securities of the Company and to permit the sale or other disposition of
such Piggy-Back Registrable Securities in accordance with the intended method(s) of distribution thereof. All holders of Piggy-Back Registrable
Securities proposing to distribute their securities through a Piggy-Back Registration that involves an underwriter or underwriters shall
enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Piggy-Back Registration.
Notwithstanding anything to the contrary in this Section 5(b), the Company shall not be required to register such Registrable Securities
pursuant to this Section 5(b) that are eligible for resale pursuant to Rule 144 promulgated under the Securities Act.
ii.
Reduction of Offering. If the managing underwriter or underwriters for a Piggy-Back Registration that is to be an underwritten
offering advises the Company and the holders of Registrable Securities in writing that the dollar amount or number of shares of Common
Stock which the Company desires to sell, taken together with Common Stock, if any, as to which registration has been demanded pursuant
to written contractual arrangements with persons other than the holders of Piggy-Back Registrable Securities hereunder, the Piggy-Back
Registrable Securities as to which registration has been requested under this Section 5(b), and the Common Stock, if any, as to which
registration has been requested pursuant to the written contractual piggy-back registration rights of other shareholders of the Company,
exceeds the maximum dollar amount or maximum number of shares that can be sold in such offering without adversely affecting the proposed
offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum
number of shares, as applicable, the “Maximum Number of Shares”), then the Company shall include in any such registration:
1.
If the registration is undertaken for the Company’s account: (A) first, the Common Stock or other securities that the Company desires
to sell that can be sold without exceeding the Maximum Number of Shares; and (B) second, subject to the requirements of registration
rights granted by the Company prior to the date hereof, to the extent that the Maximum Number of Shares has not been reached under the
foregoing clause (A), up to the amount of shares of Common Stock or other securities that can be sold without exceeding the Maximum Number
of Shares, on a pro rata basis, from (i) Piggy-Back Registrable Securities as to which registration has been requested pursuant to the
applicable written contractual piggy-back registration rights of such security holders and (ii) the Common Stock or other securities
for the account of other persons that the Company is obligated to register pursuant to written contractual piggy-back registration rights
with such persons;
2.
If the registration is a Demand Registration undertaken at the demand of holders of Registrable Securities, subject to the requirements
of registration rights granted by the Company prior to the date hereof, (A) first, the Common Stock or other securities for the account
of the demanding persons that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clause (A), the Common Stock or other securities comprised of Piggy-Back Registrable
Securities, pro rata, as to which registration has been requested pursuant to the terms hereof that can be sold without exceeding the
Maximum Number of Shares; and (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses
(A) and (B), the Common Stock or other securities for the account of other persons that the Company is obligated to register pursuant
to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Number of Shares.
iii.
Withdrawal. Any holder of Piggy-Back Registrable Securities may elect to withdraw such holder’s request for inclusion of
such Piggy-Back Registrable Securities in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw
prior to the effectiveness of the registration statement. The Company (whether on its own determination or as the result of a withdrawal
by persons making a demand pursuant to written contractual obligations) may withdraw a registration statement at any time prior to the
effectiveness of the registration statement. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the
holders of Piggy-Back Registrable Securities in connection with such Piggy-Back Registration as provided in Section 5(b)(iv).
iv.
Terms. The Company shall bear all fees and expenses attendant to registering the Piggy-Back Registrable Securities, including
the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Piggy-Back Registrable
Securities but the Holders shall pay any and all underwriting commissions related to the Piggy-Back Registrable Securities. In the event
of such a proposed registration, the Company shall furnish the then Holders of outstanding Piggy-Back Registrable Securities with not
less than five days written notice prior to the proposed date of filing of such registration statement. Such notice to the Holders shall
continue to be given for each applicable registration statement filed (during the period in which the Warrant is exercisable) by the
Company until such time as all of the Piggy-Back Registrable Securities have been registered and sold. The Holders of the Piggy-Back
Registrable Securities shall exercise the “piggy-back” rights provided for herein by giving written notice, within ten days
of the receipt of the Company’s notice of its intention to file a registration statement. The Company shall cause any registration
statement filed pursuant to the above “piggyback” rights to remain effective for at least nine months from the date that
the Holders of the Piggy-Back Registrable Securities are first given the opportunity to sell all of such securities.
c)
General Terms. These additional terms shall relate to registration under Section 5(a) above:
i.
Indemnification.
1.
The Company shall, to the fullest extent permitted by applicable law, indemnify the Holder(s) of the Registrable Securities to be sold
pursuant to any registration statement hereunder and each person, if any, who controls such Holders within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act against all loss, claim, damage, expense or liability (including all reasonable attorneys’
fees and other expenses reasonably incurred in investigating, preparing or defending against litigation, commenced or threatened, or
any claim whatsoever whether arising out of any action between the underwriter and the Company or between the underwriter and any third
party or otherwise) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration
statement; provided, however, that, with respect to any Holder of Registrable Securities, this indemnity shall not apply
to any loss, liability, claim, damage or expense to the extent arising out of an untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with written information furnished to the Company by such Holder expressly for use
in the registration statement (or any amendment thereto), or any preliminary prospectus or the prospectus (or any amendment or supplement
thereto).
2.
The Holder(s) of the Registrable Securities to be sold pursuant to such registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or liability (including
all reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim
whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on
behalf of such Holders, or their successors or assigns, in writing, for specific inclusion in such registration statement(or any amendment
thereto), or any preliminary prospectus or the prospectus (or any amendment or supplement thereto)
3.
Each indemnified party shall give prompt notice to each indemnifying party of any action commenced against it in respect of which indemnity
may be sought hereunder, but failure to so notify an indemnifying party shall not relieve the indemnifying party from any liability it
may have under this agreement, except to the extent that the indemnifying party is prejudiced thereby. If it so elects, after receipt
of such notice, an indemnifying party, jointly with any other indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it; provided, however, that the indemnified party shall be entitled to participate in (but
not control) the defense of such action with counsel chosen by it, the reasonable fees and expenses of which shall be paid by such indemnified
party, unless a conflict would arise if one counsel were to represent both the indemnified party and the indemnifying party, in which
case the reasonable fees and expenses of counsel to the indemnified party shall be paid by the indemnifying party or parties. In no event
shall the indemnifying party or parties be liable for a settlement of an action with respect to which they have assumed the defense if
such settlement is effected without the written consent of such indemnifying party, or for the reasonable fees and expenses of more than
one counsel for (i) the Company, its officers, directors and controlling persons as a group, and (ii) the selling Holders and their controlling
persons as a group, in each case, in connection with any one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances; provided, however, that if, in the reasonable judgment of
an indemnified party, a conflict of interest may exist between such indemnified party and the Company or any other of such indemnified
parties with respect to such claim, the indemnifying party shall be obligated to pay the reasonable fees and expenses of such additional
counsel.
4.
If the indemnification provided for in or pursuant to Section 5(b)(i) is due in accordance with the terms hereof, but held by a court
of competent jurisdiction to be unavailable or unenforceable in respect of any losses, claims, damages, liabilities or expenses referred
to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with
the statements or omissions which result in such losses, claims, damages, liabilities or expenses as well as any other relevant equitable
considerations. The relative fault of the indemnifying party on the one hand and of the indemnified party on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, and by such party’s
relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
ii.
Documents Delivered to Holders. The Company shall furnish the initial Holder a signed counterpart, addressed to the initial Holder,
of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes
an underwritten public offering, an opinion dated the date of the closing under any underwriting agreement related thereto), and (ii)
if such registration statement is filed in connection of an underwritten public offering, a “cold comfort” letter dated the
effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the
date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company’s
financial statements included in such registration statement, in each case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the case of such accountants’ letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’
letters delivered to underwriters in underwritten public offerings of securities.
iii.
Supplemental Prospectus. Each Holder agrees, that upon receipt of any notice from the Company of the happening of any event as
a result of which the prospectus included in the registration statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light
of the circumstances then existing, such Holder will immediately discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Holder’s receipt of the copies of a supplemental or amended prospectus,
and, if so desired by the Company, such Holder shall deliver to the Company (at the expense of the Company) or destroy (and deliver to
the Company a certificate of such destruction) all copies, other than permanent file copies then in such Holder’s possession, of
the prospectus covering such Registrable Securities current at the time of receipt of such notice. Immediately after discovering of such
an event which causes the prospectus included in the registration statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light
of the circumstances then existing, the Company shall prepare and file, as soon as practicable, a supplement or amendment to the prospectus
so that such registration statement does not include any untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing and distribute
such supplement or amendment to each Holder.
Section
6. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Governing Law; Venue. This Warrant shall be deemed to have been executed and delivered in New York and both this Warrant and the
transactions contemplated hereby shall be governed as to validity, interpretation, construction, effect, and in all other respects by
the laws of the State of New York applicable to agreements wholly performed within the borders of such state and without regard to the
conflicts of laws principals thereof (other than Section 5-1401 of The New York General Obligations Law). Each of the Holder and the
Company: (a) agrees that any legal suit, action or proceeding arising out of or relating to this Warrant and/or the transactions contemplated
hereby shall be instituted exclusively in the Supreme Court of the State of New York, New York County, or in the United States District
Court for the Southern District of New York, (b) waives any objection which it may have or hereafter to the venue of any such suit, action
or proceeding, and (c) irrevocably consents to the jurisdiction of Supreme Court of the State of New York, New York County, or in the
United States District Court for the Southern District of New York in any such suit, action or proceeding. Each of the Holder and the
Company further agrees to accept and acknowledge service of any and all process which may be served in any such suit, action or proceeding
in the Supreme Court of the State of New York, New York County, or in the United States District Court for the Southern District of New
York and agrees that service of process upon the Company mailed by certified mail to the Company’s address or delivered by Federal
Express via overnight delivery shall be deemed in every respect effective service of process upon the Company, in any such suit, action
or proceeding, and service of process upon the Holder mailed by certified mail to the Holder’s address or delivered by Federal
Express via overnight delivery shall be deemed in every respect effective service process upon the Holder, in any such suit, action or
proceeding. THE HOLDER (ON BEHALF OF ITSELF, ITS SUBSIDIARIES AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE
EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY RIGHT HOLDER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING
OUT OF OR IN CONNECTION WITH THIS WARRANT AND THE TRANSACTIONS CONTEMPLATED BY THIS WARRANT.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries to be provided hereunder shall be made in accordance with Section
9 of the Placement Agency Agreement.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on
the one hand, and the Holder or the beneficial owner of this Warrant, on the other hand.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
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SINTX
TECHNOLOGIES, INC. |
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By:
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Name: |
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Title: |
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NOTICE
OF EXERCISE
To:
SINTX TECHNOLOGIES, INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________
Date:
________________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please
Print) |
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Address: |
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(Please
Print) |
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Phone
Number: |
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Email
Address: |
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Dated:
_______________ __, ______ |
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Holder’s
Signature:__________________ |
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Holder’s
Address:______________________ |
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Exhibit
4.19
SINTX
TECHNOLOGIES, INC.
and
EQUINITI
TRUST COMPANY, LLC, as
Warrant
Agent
Warrant
Agency Agreement
Dated
as of ______, 2023
WARRANT
AGENCY AGREEMENT
WARRANT
AGENCY AGREEMENT, dated as of _______, 2023 (“Agreement”), between SINTX Technologies, Inc., a corporation organized
under the laws of the State of Delaware (the “Company”), and Equiniti Trust Company, LLC (the “Warrant Agent”).
W
I T N E S S E T H
WHEREAS,
pursuant to a registered offering by the Company of up to ______ Units (the “Offering”), with each Unit consisting
of (i) one share of the Company’s common stock, par value $0.01 per share (the “Common Stock”) (or one pre-funded
warrant (the “Pre-Funded Warrants”) and (ii) one Class E warrant to purchase one share of our Common Stock (the “Class
E Warrants” or the “Warrants”) at a price of $_____ per share; and
WHEREAS,
upon the terms and subject to the conditions hereinafter set forth and pursuant to an effective registration statement on Form S-1, as
amended (File No. 333-275137) (the “Registration Statement”), and the terms and conditions of the Warrant Certificate,
the Company wishes to issue the Warrants in book entry form entitling the respective holders of the Warrants (the “Holders,”
which term shall include a Holder’s transferees, successors and assigns and “Holder” shall include, if the Warrants
are held in “street name,” a Participant (as defined below) or a designee appointed by such Participant) to purchase an aggregate
of up to ________ shares of Common Stock upon the terms and subject to the conditions hereinafter set forth; and
WHEREAS,
the shares of Common Stock (or Pre-Funded Warrants) and Warrants to be issued in connection with the Offering shall be issued separately,
but will be purchased together in the Offering; and
WHEREAS,
the Company wishes the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with
the issuance, registration, transfer, exchange, exercise and replacement of the Warrants and, in the Warrant Agent’s capacity as
the Company’s transfer agent, the delivery of the Warrant Shares.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
Section
1. Certain Definitions. For purposes of this Agreement, all capitalized terms not herein defined shall have the meanings hereby
indicated:
(a)
“Affiliate” has the meaning ascribed to it in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”).
(b)
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United
States or any day on which the Nasdaq Stock Market is authorized or required by law or other governmental action to close.
(c)
“Close of Business” on any given date means 5:00 p.m., New York City time, on such date; provided, however,
that if such date is not a Business Day it means 5:00 p.m., New York City time, on the next succeeding Business Day.
(d)
“Person” means an individual, corporation, association, partnership, limited liability company, joint venture, trust,
unincorporated organization, government or political subdivision thereof or governmental agency or other entity.
(e)
“Warrant Certificate” means a certificate in substantially the form attached as Exhibit 1, or Exhibit 2
hereto, as applicable, representing such number of Warrant Shares as is indicated therein, provided that any reference to the delivery
of a Warrant Certificate in this Agreement shall include delivery of a Definitive Certificate or a Global Warrant (each as defined below).
All
other capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Warrant Certificate.
Section
2. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with
the terms and conditions hereof, and the Warrant Agent hereby accepts such appointment.
Section
3. Global Warrants.
(a)
The Warrants shall be registered securities and shall be evidenced by a Class E global warrant with respect to the Class E Warrants (the
“Class E Global Warrant”) and by a pre-funded global warrant with respect to the Pre-Funded Warrants (the “Pre-Funded
Global Warrant”, together with the Class E Global Warrant, the “Global Warrant”), in the form of the Warrant
Certificates, which shall be deposited with the Warrant Agent and registered in the name of Cede & Co., a nominee of The Depository
Trust Company (the “Depositary”), or as otherwise directed by the Depositary. Ownership of beneficial interests in
the Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by (i) the Depositary
or its nominee for each Global Warrant or (ii) institutions that have accounts with the Depositary (such institution, with respect to
a Warrant in its account, a “Participant”).
(b)
If the Depositary subsequently ceases to make its book-entry settlement system available for the Warrants, the Company may instruct the
Warrant Agent regarding other arrangements for book-entry settlement. In the event that the Warrants are not eligible for, or it is no
longer necessary to have the Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary
to deliver to the Warrant Agent for cancellation each Global Warrant, and the Company shall instruct the Warrant Agent to deliver to
each Holder a Warrant Certificate.
(c)
A Holder has the right to elect at any time or from time to time a Warrant Exchange (as defined below) pursuant to a Warrant Certificate
Request Notice (as defined below). Upon written notice by a Holder to the Company and the Warrant Agent for the exchange of some or all
of such Holder’s Global Warrants for a separate certificate in the form attached hereto as Exhibit 1, with respect to a
Holder of Class E Warrants, or Exhibit 2, with respect to a Holder of Pre-Funded Warrants, as applicable (such separate certificate,
a “Definitive Certificate”) evidencing the same number of Warrants, which request shall be in the form attached hereto
as Exhibit 3 (a “Warrant Certificate Request Notice” and the date of delivery of such Warrant Certificate Request
Notice by the Holder, the “Warrant Certificate Request Notice Date” and the surrender by the Holder to the Warrant
Agent of a number of Global Warrants for the same number of Warrants evidenced by a Warrant Certificate, a “Warrant Exchange”),
the Company and the Warrant Agent shall promptly effect the Warrant Exchange and the Company shall promptly issue and deliver to the
Holder a Definitive Certificate for such number of Warrants in the name set forth in the Warrant Certificate Request Notice. Such Definitive
Certificate shall be dated the original issue date of the Warrants, shall be manually executed by an authorized signatory of the Company,
shall be in the form attached hereto as Exhibit 1 or Exhibit 2, as applicable, and shall be reasonably acceptable in all
respects to such Holder. In connection with a Warrant Exchange, the Company agrees to deliver the Definitive Certificate to the Holder
within ten (10) Business Days of the Warrant Certificate Request Notice pursuant to the delivery instructions in the Warrant Certificate
Request Notice (“Warrant Certificate Delivery Date”). If the Company fails for any reason to deliver to the Holder
the Definitive Certificate subject to the Warrant Certificate Request Notice by the Warrant Certificate Delivery Date, the Company shall
pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares evidenced by such Definitive
Certificate (based on the VWAP (as defined in the Warrants) of the Common Stock on the Warrant Certificate Request Notice Date), $10
per Business Day for each Business Day after such Warrant Certificate Delivery Date until such Definitive Certificate is delivered or,
prior to delivery of such Warrant Certificate, the Holder rescinds such Warrant Exchange. The Company covenants and agrees that, upon
the date of delivery of the Warrant Certificate Request Notice, the Holder shall be deemed to be the holder of the Definitive Certificate
and, notwithstanding anything to the contrary set forth herein, the Definitive Certificate shall be deemed for all purposes to contain
all of the terms and conditions of the Warrants evidenced by such Warrant Certificate and the terms of this Agreement, other than Sections
3(c), 3(d) and 9 herein, shall not apply to the Warrants evidenced by the Definitive Certificate. Notwithstanding anything herein to
the contrary, the Company shall act as warrant agent with respect to any Definitive Certificate requested and issued pursuant to this
section. Notwithstanding anything to the contrary contained in this Agreement, in the event of inconsistency between any provision in
this Agreement and any provision in a Definitive Certificate, as it may from time to time be amended, the terms of such Definitive Certificate
shall control.
(d)
A Holder of a Definitive Certificate (pursuant to a Warrant Exchange or otherwise) has the right to elect at any time or from time to
time a Global Warrants Exchange (as defined below) pursuant to a Global Warrants Request Notice (as defined below). Upon written notice
by a Holder to the Company for the exchange of some or all of such Holder’s Warrants evidenced by a Definitive Certificate for
a beneficial interest in Global Warrants held in book-entry form through the Depositary evidencing the same number of Warrants, which
request shall be in the form attached hereto as Exhibit 4 (a “Global Warrants Request Notice” and the date
of delivery of such Global Warrants Request Notice by the Holder, the “Global Warrants Request Notice Date” and the
surrender upon delivery by the Holder of the Warrants evidenced by Definitive Certificates for the same number of Warrants evidenced
by a beneficial interest in Global Warrants held in book-entry form through the Depositary, a “Global Warrants Exchange”),
the Company shall promptly effect the Global Warrants Exchange and shall promptly direct the Warrant Agent to issue and deliver to the
Holder Global Warrants for such number of Warrants in the Global Warrants Request Notice, which beneficial interest in such Global Warrants
shall be delivered by the Depositary’s Deposit or Withdrawal at Custodian system to the Holder pursuant to the instructions in
the Global Warrants Request Notice. In connection with a Global Warrants Exchange, the Company shall direct the Warrant Agent to deliver
the beneficial interest in such Global Warrants to the Holder within ten (10) Business Days of the Global Warrants Request Notice pursuant
to the delivery instructions in the Global Warrant Request Notice (“Global Warrants Delivery Date”). If the Company
fails for any reason to deliver to the Holder Global Warrants subject to the Global Warrants Request Notice by the Global Warrants Delivery
Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares evidenced
by such Global Warrants (based on the VWAP (as defined in the Warrants) of the Common Stock on the Global Warrants Request Notice Date),
$10 per Business Day (increasing to $20 per Business Day on the fifth Business Day after such liquidated damages begin to accrue) for
each Business Day after such Global Warrants Delivery Date until such Global Warrants are delivered or, prior to delivery of such Global
Warrants, the Holder rescinds such Global Warrants Exchange. The Company covenants and agrees that, upon the date of delivery of the
Global Warrants Request Notice, the Holder shall be deemed to be the beneficial holder of such Global Warrants.
Section
4. Form of Warrant Certificates. The Warrant Certificate, together with the form of election to purchase Common Stock (“Notice
of Exercise”) and the form of assignment to be printed on the reverse thereof, shall be in the form of Exhibit 1 or
Exhibit 2 hereto, as applicable.
Section
5. Countersignature and Registration. The Global Warrant shall be executed on behalf of the Company by its Chief Executive Officer,
Chief Financial Officer or Vice President, by facsimile signature, and have affixed thereto the Company’s seal or a facsimile thereof
which shall be attested by the Secretary or an Assistant Secretary of the Company, by facsimile signature. The Global Warrant shall be
countersigned by the Warrant Agent by facsimile signature and shall not be valid for any purpose unless so countersigned. In case any
officer of the Company who shall have signed any of the Global Warrant shall cease to be such officer of the Company before countersignature
by the Warrant Agent and issuance and delivery by the Company, such Global Warrant, nevertheless, may be countersigned by the Warrant
Agent, issued and delivered with the same force and effect as though the person who signed such Global Warrant had not ceased to be such
officer of the Company; and any Global Warrant may be signed on behalf of the Company by any person who, at the actual date of the execution
of such Global Warrant, shall be a proper officer of the Company to sign such Global Warrant, although at the date of the execution of
this Warrant Agreement any such person was not such an officer.
The
Warrant Agent will keep or cause to be kept, at one of its offices, or at the office of one of its agents, books for registration and
transfer of the Global Warrants issued hereunder. Such books shall show the names and addresses of the respective Holders of the Global
Warrant, the number of warrants evidenced on the face of each of such Global Warrant and the date of each of such Global Warrant. The
Warrant Agent will create a special account for the issuance of Global Warrants. The Company will keep or cause to be kept at one of
its offices, books for the registration and transfer of any Definitive Certificates issued hereunder and the Warrant Agent shall not
have any obligation to keep books and records with respect to any Definitive Warrants. Such Company books shall show the names and addresses
of the respective Holders of the Definitive Certificates, the number of warrants evidenced on the face of each such Definitive Certificate
and the date of each such Definitive Certificate.
Section
6. Transfer, Split Up, Combination and Exchange of Warrant Certificates; Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
With respect to the Global Warrants, subject to the provisions of the Warrant Certificate and the last sentence of this first paragraph
of Section 6 and subject to applicable law, rules or regulations, or any “stop transfer” instructions the Company may give
to the Warrant Agent, at any time after the closing date of the Offering, and at or prior to the Close of Business on the Termination
Date (as such term is defined in the Warrant Certificate), any Global Warrant or Global Warrants may be transferred, split up, combined
or exchanged for another Global Warrant or Global Warrants, entitling the Holder to purchase a like number of shares of Common Stock
as the Global Warrant or Global Warrants surrendered then entitled such Holder to purchase. Any Holder desiring to transfer, split up,
combine or exchange any Global Warrant shall make such request in writing delivered to the Warrant Agent, and shall surrender the Global
Warrant to be transferred, split up, combined or exchanged at the principal office of the Warrant Agent. Any requested transfer of Warrants,
whether in book-entry form or certificate form, shall be accompanied by reasonable evidence of authority of the party making such request
that may be required by the Warrant Agent. Thereupon the Warrant Agent shall, subject to the last sentence of this first paragraph of
Section 6, countersign and deliver to the Person entitled thereto a Global Warrant or Global Warrants, as the case may be, as so requested.
The Company may require payment from the Holder of a sum sufficient to cover any tax or governmental charge that may be imposed in connection
with any transfer, split up, combination or exchange of Global Warrants. The Company shall compensate the Warrant Agent per the fee schedule
mutually agreed upon by the parties hereto and provided separately on the date hereof.
Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of a Warrant Certificate,
which evidence shall include an affidavit of loss, or in the case of mutilated certificates, the certificate or portion thereof remaining,
and, in case of loss, theft or destruction, of indemnity in customary form and amount, and satisfaction of any other reasonable requirements
established by Section 8-405 of the Uniform Commercial Code as in effect in the State of Delaware, and reimbursement to the Company and
the Warrant Agent of all reasonable expenses incidental thereto, and upon surrender to the Warrant Agent and cancellation of the Warrant
Certificate if mutilated, the Company will make and deliver a new Warrant Certificate of like tenor to the Warrant Agent for delivery
to the Holder in lieu of the Warrant Certificate so lost, stolen, destroyed or mutilated.
Section
7. Exercise of Warrants; Exercise Price; Termination Date.
(a)
The Class E Warrants shall be exercisable commencing on the Initial Exercise Date. The Warrants shall cease to be exercisable and shall
terminate and become void as set forth in the Warrant Certificate. Subject to the foregoing and to Section 7(b) below, the Holder of
a Warrant may exercise the Warrant in whole or in part upon surrender of the Warrant Certificate, if required, with the executed Notice
of Exercise and payment of the Exercise Price, which may be made, at the option of the Holder, by wire transfer or by certified or official
bank check in United States dollars, to the Warrant Agent at the principal office of the Warrant Agent or to the office of one of its
agents as may be designated by the Warrant Agent from time to time. In the case of the Holder of a Global Warrant, the Holder shall deliver
the executed Notice of Exercise and the payment of the Exercise Price as described herein. Notwithstanding any other provision in this
Agreement, a holder whose interest in a Global Warrant is a beneficial interest in a Global Warrant held in book-entry form through the
Depositary (or another established clearing corporation performing similar functions), shall effect exercises by delivering to the Depositary
(or such other clearing corporation, as applicable) the appropriate instruction form for exercise, complying with the procedures to effect
exercise that are required by the Depositary (or such other clearing corporation, as applicable). The Company acknowledges that the bank
accounts maintained by the Warrant Agent in connection with the services provided under this Agreement will be in its name and that the
Warrant Agent may receive investment earnings in connection with the investment at Warrant Agent risk and for its benefit of funds held
in those accounts from time to time. Neither the Company nor the Holders will receive interest on any deposits or Exercise Price. No
ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of
any Notice of Exercise be required, with the exception being that if the Warrant Shares are being issued and delivered to a party other
than the party exercising the Notice of Exercise, a medallion signature guarantee will be required. The Company hereby acknowledges and
agrees that, with respect to a holder whose interest in a Global Warrant is a beneficial interest in a Global Warrant held in book-entry
form through the Depositary (or another established clearing corporation performing similar functions), upon delivery of irrevocable
instructions to such holder’s Participant to exercise such warrants, that solely for purposes of Regulation SHO that such holder
shall be deemed to have exercised such warrants.
(b)
Upon receipt of a Notice of Exercise for a Cashless Exercise the Company will promptly calculate and transmit to the Warrant Agent the
number of Warrant Shares issuable in connection with such Cashless Exercise and deliver a copy of the Notice of Exercise to the Warrant
Agent, which shall issue such number of Warrant Shares in connection with such Cashless Exercise.
(c)
Upon the exercise of the Warrant Certificate pursuant to the terms of Section 2 of the Warrant Certificate, the Warrant Agent shall cause
the Warrant Shares underlying such Warrant Certificate or Global Warrant to be delivered to or upon the order of the Holder of such Warrant
Certificate or Global Warrant, registered in such name or names as may be designated by such Holder, no later than the Warrant Share
Delivery Date (as such term is defined in the Warrant Certificate). If the Company is then a participant in the DWAC system of the Depositary
and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant
Shares by Holder or (B) the Warrant is being exercised via Cashless Exercise, then the certificates for Warrant Shares shall be transmitted
by the Warrant Agent to the Holder by crediting the account of the Holder’s broker with the Depositary through its DWAC system.
For the avoidance of doubt, if the Company becomes obligated to pay any amounts to any Holders pursuant to Section 2(d)(i) or 2(d)(iv)
of the Warrant Certificate, such obligation shall be solely that of the Company and not that of the Warrant Agent. Notwithstanding anything
else to the contrary in this Agreement, except in the case of a Cashless Exercise, if any Holder fails to duly deliver payment to the
Warrant Agent of an amount equal to the aggregate Exercise Price of the Warrant Shares to be purchased upon exercise of such Holder’s
Warrant as set forth in Section 7(a) hereof by the Warrant Share Delivery Date, the Warrant Agent will not obligated to deliver such
Warrant Shares (via DWAC or otherwise) until following receipt of such payment, and the applicable Warrant Share Delivery Date shall
be deemed extended by one day for each day (or part thereof) until such payment is delivered to the Warrant Agent.
(d)
The Warrant Agent shall deposit all funds received by it in payment of the Exercise Price for all Warrants in the account of the Company
maintained with the Warrant Agent for such purpose (or to such other account as directed by the Company in writing) and shall advise
the Company via email at the end of each day on which notices of exercise are received or funds for the exercise of any Warrant are received
of the amount so deposited to its account.
Section
8. Cancellation and Destruction of Warrant Certificates. All Warrant Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the Company or to any of its agents, be delivered to the Warrant Agent for
cancellation or in canceled form, or, if surrendered to the Warrant Agent, shall be canceled by it, and no Warrant Certificate shall
be issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement. The Company shall deliver to the
Warrant Agent for cancellation and retirement, and the Warrant Agent shall so cancel and retire, any other Warrant Certificate purchased
or acquired by the Company otherwise than upon the exercise thereof. The Warrant Agent shall deliver all canceled Warrant Certificates
to the Company, or shall, at the written request of the Company, destroy such canceled Warrant Certificates, and in such case shall deliver
a certificate of destruction thereof to the Company, subject to any applicable law, rule or regulation requiring the Warrant Agent to
retain such canceled certificates.
Section
9. Certain Representations; Reservation and Availability of Shares of Common Stock or Cash.
(a)
This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery
hereof by the Warrant Agent, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance
with its terms, and the Warrants have been duly authorized, executed and issued by the Company and, assuming due authentication thereof
by the Warrant Agent pursuant hereto and payment therefor by the Holders as provided in the Registration Statement, constitute valid
and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits
hereof; in each case except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(b)
As of the date hereof, the authorized capital stock of the Company consists of (i) two hundred and fifty million (250,000,000) shares
of common stock, of which approximately ______ shares of Common Stock are issued and outstanding as of June 30, 2023, ______ shares of
Common Stock reserved for future issuance under our 2020 Equity Incentive Plan as of June 30, 2023, and ______ shares of common stock
reserved for future issuance under outstanding common stock warrants (not including the Warrants) as of June 30, 2023; and (ii) one hundred
and thirty million (130,000,000) shares of preferred stock, par value $0.01 per share, of which ______ shares of common stock are reserved
for issuance on conversion of ____ shares of the Series B Preferred Stock, _____ shares of common stock are reserved for issuance on
conversion of ___ shares of the Series C Preferred Stock, and ____ shares of common stock reserved for issuance on conversion of ___
shares of the Series D Preferred Stock, are issued and outstanding as of June 30, 2023. Except as disclosed in the Registration Statement,
there are no other outstanding obligations, warrants, options or other rights to subscribe for or purchase from the Company any class
of capital stock of the Company.
(c)
The Company covenants and agrees that it will cause to be reserved and kept available out of its authorized and unissued shares of Common
Stock or its authorized and issued shares of Common Stock held in its treasury, free from preemptive rights, the number of shares of
Common Stock that will be sufficient to permit the exercise in full of all outstanding Class E Warrants and Pre-Funded Warrants.
(d)
The Warrant Agent will create a special account for the issuance of Common Stock upon the exercise of Warrants.
(e)
The Company further covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges
which may be payable in respect of the original issuance or delivery of the Warrant Certificates or certificates evidencing Common Stock
upon exercise of the Warrants. The Company shall not, however, be required to pay any tax or governmental charge which may be payable
in respect of any transfer involved in the transfer or delivery of Warrant Certificates or the issuance or delivery of certificates for
Common Stock in a name other than that of the Holder of the Warrant Certificate evidencing Warrants surrendered for exercise or to issue
or deliver any certificate for shares of Common Stock upon the exercise of any Warrants until any such tax or governmental charge shall
have been paid (any such tax or governmental charge being payable by the Holder of such Warrant Certificate at the time of surrender)
or until it has been established to the Company’s reasonable satisfaction that no such tax or governmental charge is due.
Section
10. Common Stock Record Date. Each Person in whose name any certificate for shares of Common Stock is issued (or to whose broker’s
account is credited shares of Common Stock through the DWAC system) upon the exercise of Warrants shall for all purposes be deemed to
have become the holder of record for the Common Stock represented thereby on, and such certificate shall be dated, the date on which
submission of the Notice of Exercise was made, provided that the Warrant Certificate evidencing such Warrant is duly surrendered (but
only if required herein) and payment of the Exercise Price (and any applicable transfer taxes) is received on or prior to the Warrant
Share Delivery Date; provided, however, that if the date of submission of the Notice of Exercise is a date upon which the
Common Stock transfer books of the Company are closed, such Person shall be deemed to have become the record holder of such shares on,
and such certificate shall be dated, the next succeeding day on which the Common Stock transfer books of the Company are open.
Section
11. Adjustment of Exercise Price, Number of Shares of Common Stock or Number of the Company Warrants. The Exercise Price, the
number of shares covered by each Warrant and the number of Warrants outstanding are subject to adjustment from time to time as provided
in Section 3 of the Warrant Certificate. In the event that at any time, as a result of an adjustment made pursuant to Section 3 of the
Warrant Certificate, the Holder of any Warrant thereafter exercised shall become entitled to receive any shares of capital stock of the
Company other than shares of Common Stock, thereafter the number of such other shares so receivable upon exercise of any Warrant shall
be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect
to the shares contained in Section 3 of the Warrant Certificate and the provisions of Sections 7, 11 and 12 of this Agreement with respect
to the shares of Common Stock shall apply on like terms to any such other shares. All Warrants originally issued by the Company subsequent
to any adjustment made to the Exercise Price pursuant to the Warrant Certificate shall evidence the right to purchase, at the adjusted
Exercise Price, the number of shares of Common Stock purchasable from time to time hereunder upon exercise of the Warrants, all subject
to further adjustment as provided herein.
Section
12. Certification of Adjusted Exercise Price or Number of Shares of Common Stock. Whenever the Exercise Price or the number of
shares of Common Stock issuable upon the exercise of each Warrant is adjusted as provided in Section 11 or 13, the Company shall (a)
promptly prepare a certificate setting forth the Exercise Price of each Warrant as so adjusted, and a brief statement of the facts accounting
for such adjustment, (b) promptly file with the Warrant Agent and with each transfer agent for the Common Stock a copy of such certificate
and (c) instruct the Warrant Agent to send a brief summary thereof to each Holder of a Warrant Certificate.
Section
13. Fractional Shares of Common Stock.
(a)
The Company shall not issue fractions of Warrants or distribute Warrant Certificates which evidence fractional Warrants. Whenever any
fractional Warrant would otherwise be required to be issued or distributed, the actual issuance or distribution shall reflect a rounding
of such fraction to the nearest whole Warrant (rounded down).
(b)
The Company shall not issue fractions of shares of Common Stock upon exercise of Warrants or distribute stock certificates which evidence
fractional shares of Common Stock. Whenever any fraction of a share of Common Stock would otherwise be required to be issued or distributed,
the actual issuance or distribution in respect thereof shall be made in accordance with Section 2(d)(v) of the Warrant Certificate.
Section
14. Conditions of the Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms
and conditions hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the Holders
from time to time of the Warrant Certificates shall be subject:
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(a) |
Compensation
and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation detailed on Exhibit 5 hereto
for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without gross negligence or willful misconduct finally adjudicated to have been directly caused
by the Warrant Agent in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify
the Warrant Agent for, and to hold it harmless against, any loss, liability or expense incurred without gross negligence, or willful
misconduct on the part of the Warrant Agent, finally adjudicated to have been directly caused by Warrant Agent hereunder, including
the reasonable costs and expenses of defending against any claim of such liability. The Warrant Agent shall be under no obligation
to institute or defend any action, suit, or legal proceeding in connection herewith or to take any other action likely to involve
the Warrant Agent in expense, unless first indemnified to the Warrant Agent’s satisfaction. The indemnities provided by this
paragraph shall survive the resignation or discharge of the Warrant Agent or the termination of this Agreement. Anything in this
Agreement to the contrary notwithstanding, in no event shall the Warrant Agent be liable under or in connection with the Agreement
for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited
to lost profits, whether or not foreseeable, even if the Warrant Agent has been advised of the possibility thereof and regardless
of the form of action in which such damages are sought, and the Warrant Agent’s aggregate liability to the Company, or any
of the Company’s representatives or agents, under this Section 14(a) or under any other term or provision of this Agreement,
whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one (1) year’s
fees received by the Warrant Agent as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed
to the Warrant Agent by the Company hereunder. |
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(b) |
Agent
for the Company. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the
Holders of Warrant Certificates or beneficial owners of Warrants. |
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(c) |
Counsel.
The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice
of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such counsel. |
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(d) |
Documents.
The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper parties. |
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(e) |
Certain
Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on,
or as depositary, trustee or agent for, any committee or body of Holders of Warrant Securities or other obligations of the Company
as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant
Agent from acting as trustee under any indenture to which the Company is a party. |
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(f) |
No
Liability for Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates. |
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(g) |
No
Liability for Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or the Warrant
Certificates (except as to the Warrant Agent’s countersignature thereon). |
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(h) |
No
Responsibility for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein
or in the Warrant Certificate (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by
the Company. |
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(i) |
No
Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against
the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company
of the proceeds of the Warrant Certificate. The Warrant Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt
of any written demand from a Holder of a Warrant Certificate with respect to such default, including, without limiting the generality
of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law. |
Section
15. Purchase or Consolidation or Change of Name of Warrant Agent. Any corporation into which the Warrant Agent or any successor
Warrant Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which
the Warrant Agent or any successor Warrant Agent shall be party, or any corporation succeeding to the corporate trust business of the
Warrant Agent or any successor Warrant Agent, shall be the successor to the Warrant Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible
for appointment as a successor Warrant Agent under the provisions of Section 17. In case at the time such successor Warrant Agent shall
succeed to the agency created by this Agreement any of the Warrant Certificates shall have been countersigned but not delivered, any
such successor Warrant Agent may adopt the countersignature of the predecessor Warrant Agent and deliver such Warrant Certificates so
countersigned; and in case at that time any of the Warrant Certificates shall not have been countersigned, any successor Warrant Agent
may countersign such Warrant Certificates either in the name of the predecessor Warrant Agent or in the name of the successor Warrant
Agent; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement.
In
case at any time the name of the Warrant Agent shall be changed and at such time any of the Warrant Certificates shall have been countersigned
but not delivered, the Warrant Agent may adopt the countersignature under its prior name and deliver such Warrant Certificates so countersigned;
and in case at that time any of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant
Certificates either in its prior name or in its changed name; and in all such cases such Warrant Certificates shall have the full force
provided in the Warrant Certificates and in this Agreement.
Section
16. Duties of Warrant Agent. The Warrant Agent undertakes the duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Company, by its acceptance hereof, shall be bound:
(a)
The Warrant Agent may consult with legal counsel reasonably acceptable to the Company (who may be legal counsel for the Company), and
the opinion of such counsel shall be full and complete authorization and protection to the Warrant Agent as to any action taken or omitted
by it in good faith and in accordance with such opinion.
(b)
Whenever in the performance of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed
by the Chief Executive Officer, Chief Financial Officer or Vice President of the Company; and such certificate shall be full authentication
to the Warrant Agent for any action taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c)
Subject to the limitation set forth in Section 14, the Warrant Agent shall be liable hereunder only for its own gross negligence or willful
misconduct, or for a breach by it of this Agreement.
(d)
The Warrant Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in
the Warrant Certificate (except its countersignature thereof) by the Company or be required to verify the same, but all such statements
and recitals are and shall be deemed to have been made by the Company only.
(e)
The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant Certificate (except
its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this
Agreement or in any Warrant Certificate; nor shall it be responsible for the adjustment of the Exercise Price or the making of any change
in the number of shares of Common Stock required under the provisions of Section 11 or 13 or responsible for the manner, method or amount
of any such change or the ascertaining of the existence of facts that would require any such adjustment or change (except with respect
to the exercise of Warrants evidenced by the Warrant Certificates after actual notice of any adjustment of the Exercise Price); nor shall
it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common
Stock to be issued pursuant to this Agreement or any Warrant Certificate or as to whether any shares of Common Stock will, when issued,
be duly authorized, validly issued, fully paid and nonassessable.
(f)
Each party hereto agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may reasonably be required by the other party hereto for the
carrying out or performing by any party of the provisions of this Agreement.
(g)
The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief
Executive Officer, Chief Financial Officer or Vice President of the Company, and to apply to such officers for advice or instructions
in connection with its duties, and it shall not be liable and shall be indemnified and held harmless for any action taken or suffered
to be taken by it in good faith in accordance with instructions of any such officer, provided Warrant Agent carries out such instructions
without gross negligence or willful misconduct.
(h)
The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants
or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract
with or lend money to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(i)
The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorney or agents, and the Warrant Agent shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorney or agents or for any loss to the Company resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued employment thereof.
Section
17. Change of Warrant Agent. The Warrant Agent may resign and be discharged from its duties under this Agreement upon 30 days’
notice in writing sent to the Company and to each transfer agent of the Common Stock, and to the Holders of the Warrant Certificates.
The Company may remove the Warrant Agent or any successor Warrant Agent upon 30 days’ notice in writing, sent to the Warrant Agent
or successor Warrant Agent, as the case may be, and to each transfer agent of the Common Stock, and to the Holders of the Warrant Certificates.
If the Warrant Agent shall resign or be removed or shall otherwise become incapable of acting, the Company shall appoint a successor
to the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after such removal or after it has
been notified in writing of such resignation or incapacity by the resigning or incapacitated Warrant Agent or by the Holder of a Warrant
Certificate (who shall, with such notice, submit his Warrant Certificate for inspection by the Company), then the Holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment of a new Warrant Agent, provided that, for purposes
of this Agreement, the Company shall be deemed to be the Warrant Agent until a new warrant agent is appointed. Any successor Warrant
Agent, whether appointed by the Company or by such a court, shall be a corporation organized and doing business under the laws of the
United States or of a state thereof, in good standing, which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal or state authority and which has at the time of its appointment as Warrant Agent a combined
capital and surplus of at least $50,000,000. After appointment, the successor Warrant Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as Warrant Agent without further act or deed; but the predecessor Warrant
Agent shall deliver and transfer to the successor Warrant Agent any property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the purpose. Not later than the effective date of any such appointment,
the Company shall file notice thereof in writing with the predecessor Warrant Agent and each transfer agent of the Common Stock, and
mail a notice thereof in writing to the Holders of the Warrant Certificates. However, failure to give any notice provided for in this
Section 17, or any defect therein, shall not affect the legality or validity of the resignation or removal of the Warrant Agent or the
appointment of the successor Warrant Agent, as the case may be.
Section
18. Issuance of New Warrant Certificates. Notwithstanding any of the provisions of this Agreement or of the Warrants to the contrary,
the Company may, at its option, issue new Warrant Certificates evidencing Warrants in such form as may be approved by its Board of Directors
to reflect any adjustment or change in the Exercise Price per share and the number or kind or class of shares of stock or other securities
or property purchasable under the several Warrant Certificates made in accordance with the provisions of this Agreement.
Section
19. Notices. Notices or demands authorized by this Agreement to be given or made (i) by the Warrant Agent or by the Holder of
any Warrant Certificate to or on the Company, (ii) subject to the provisions of Section 17, by the Company or by the Holder of any Warrant
Certificate to or on the Warrant Agent or (iii) by the Company or the Warrant Agent to the Holder of any Warrant Certificate shall be
deemed given (a) on the date delivered, if delivered personally, (b) on the first Business Day following the deposit thereof with Federal
Express or another recognized overnight courier, if sent by Federal Express or another recognized overnight courier, (c) on the fourth
Business Day following the mailing thereof with postage prepaid, if mailed by registered or certified mail (return receipt requested),
and (d) the date of transmission, if such notice or communication is delivered via facsimile or email attachment at or prior to 5:30
p.m. (New York City time) on a Business Day and (e) the next Business Day after the date of transmission, if such notice or communication
is delivered via facsimile or email attachment on a day that is not a Business Day or later than 5:30 p.m. (New York City time) on any
Business Day, in each case to the parties at the following addresses (or at such other address for a party as shall be specified by like
notice):
|
(a) |
If
to the Company, to: |
|
|
|
|
|
SINTX
Technologies, Inc. |
|
|
1885
West 2100 South |
|
|
Salt
Lake City, UT, 84119 |
|
|
Facsimile:
855.839.3500 |
|
|
Attention:
Chief Executive Officer |
|
(b) |
If
to the Warrant Agent, to: |
|
|
|
|
|
Equiniti
Trust Company, LLC |
|
|
48
Wall Street, 22nd Floor |
|
|
New
York, NY 10005 |
|
|
Attention:
Corporate Actions – Warrants
|
|
|
Email:
ReorgWarrants@equiniti.com |
For
any notice delivered by email to be deemed given or made, such notice must be followed by notice sent by overnight courier service to
be delivered on the next business day following such email, unless the recipient of such email has acknowledged via return email receipt
of such email.
(c)
If to the Holder of any Warrant Certificate to the address of such Holder as shown on the registry books of the Company. Any notice required
to be delivered by the Company to the Holder of any Warrant may be given by the Warrant Agent on behalf of the Company. Notwithstanding
any other provision of this Agreement, where this Agreement provides for notice of any event to a Holder of any Warrant, such notice
shall be sufficiently given if given to the Depositary (or its designee) pursuant to the procedures of the Depositary or its designee.
Section
20. Supplements and Amendments.
(a)
The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any Holders of Global
Warrants in order to add to the covenants and agreements of the Company for the benefit of the Holders of the Global Warrants or to surrender
any rights or power reserved to or conferred upon the Company in this Agreement, provided that such addition or surrender shall not adversely
affect the interests of the Holders of the Global Warrants or Warrant Certificates in any material respect.
(b)
In addition to the foregoing, with the consent of Holders of Warrants entitled, upon exercise thereof, to receive not less than a majority
of the shares of Common Stock issuable thereunder, the Company and the Warrant Agent may modify this Agreement for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions of this Warrant Agreement or modifying in any manner
the rights of the Holders of the Global Warrants; provided, however, that no modification of the terms (including but not
limited to the adjustments described in Section 11) upon which the Warrants are exercisable or the rights of holders of Warrants to receive
liquidated damages or other payments in cash from the Company or reducing the percentage required for consent to modification of this
Agreement may be made without the consent of the Holder of each outstanding Warrant Certificate affected thereby; provided further,
however, that no amendment hereunder shall affect any terms of any Warrant Certificate issued in a Warrant Exchange. As a condition
precedent to the Warrant Agent’s execution of any amendment, the Company shall deliver to the Warrant Agent a certificate from
a duly authorized officer of the Company that states that the proposed amendment complies with the terms of this Section 20.
Section
21. Successors. All covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns hereunder.
Section
22. Benefits of this Agreement. Nothing in this Agreement shall be construed to give any Person other than the Company, the Holders
of Warrant Certificates and the Warrant Agent any legal or equitable right, remedy or claim under this Agreement. This Agreement shall
be for the sole and exclusive benefit of the Company, the Warrant Agent and the Holders of the Warrant Certificates.
Section
23. Governing Law. This Agreement and each Warrant Certificate and Global Warrant issued hereunder shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving effect to the conflicts of law principles thereof.
Section
24. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
Section
25. Captions. The captions of the sections of this Agreement have been inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
Section
26. Information. The Company agrees to promptly provide to the Holders of the Warrants any information it provides to the holders
of the Common Stock, except to the extent any such information is publicly available on the EDGAR system (or any successor thereof) of
the Securities and Exchange Commission.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
[Signature
Page to Follow]
|
SINTX
TECHNOLOGIES, INC. |
|
|
|
|
By: |
|
|
Name: |
Sonny
Bal |
|
Title: |
Chief
Executive Officer |
|
|
|
|
EQUINITI
trust Company, LLC |
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|
|
|
By: |
|
|
Name: |
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Title: |
|
Exhibit
1
Form
of Class E Warrant Certificate
Exhibit
2
Form
of Pre-Funded Warrant Certificate
Exhibit
3
Form
of Warrant Certificate Request Notice
WARRANT
CERTIFICATE REQUEST NOTICE
To:
Equiniti Trust Company, LLC, as Warrant Agent for Sintx Technologies, Inc. (the “Company”)
The
undersigned Holder of Common Stock Purchase Warrants (“Warrants”) in the form of Global Warrants issued by the Company
hereby elects to receive a Warrant Certificate evidencing the Warrants held by the Holder as specified below:
1. |
Name
of Holder of Warrants in form of Global Warrants: _____________________________ |
|
|
2. |
Name
of Holder in Warrant Certificate (if different from name of Holder of Warrants in form of Global Warrants): ________________________________ |
|
|
3. |
Number
of Warrants in name of Holder in form of Global Warrants: ___________________ |
|
|
4. |
Number
of Warrants for which Warrant Certificate shall be issued: __________________ |
|
|
5. |
Number
of Warrants in name of Holder in form of Global Warrants after issuance of Warrant Certificate, if any: ___________ |
|
|
6. |
Warrant
Certificate shall be delivered to the following address: |
______________________________
______________________________
______________________________
______________________________
The
undersigned hereby acknowledges and agrees that, in connection with this Warrant Exchange and the issuance of the Warrant Certificate,
the Holder is deemed to have surrendered the number of Warrants in form of Global Warrants in the name of the Holder equal to the number
of Warrants evidenced by the Warrant Certificate.
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ____________________________________________________
Signature
of Authorized Signatory of Investing Entity: ______________________________
Name
of Authorized Signatory: ________________________________________________
Title
of Authorized Signatory: _________________________________________________
Date:
_______________________________________________________________
Exhibit
4
Form
of Global Warrant Request Notice
GLOBAL
WARRANT REQUEST NOTICE
To:
Equiniti Trust Company, LLC, as Warrant Agent for Sintx Technologies, Inc. (the “Company”)
The
undersigned Holder of Common Stock Purchase Warrants (“Warrants”) in the form of Warrants Certificates issued by the
Company hereby elects to receive a Global Warrant evidencing the Warrants held by the Holder as specified below:
1. |
Name
of Holder of Warrants in form of Warrant Certificates: _____________________________ |
|
|
2. |
Name
of Holder in Global Warrant (if different from name of Holder of Warrants in form of Warrant Certificates): ________________________________ |
|
|
3. |
Number
of Warrants in name of Holder in form of Warrant Certificates: ___________________ |
|
|
4. |
Number
of Warrants for which Global Warrant shall be issued: __________________ |
|
|
5. |
Number
of Warrants in name of Holder in form of Warrant Certificates after issuance of Global Warrant, if any: |
|
|
6. |
Global
Warrant shall be delivered to the following address: |
______________________________
______________________________
______________________________
______________________________
The
undersigned hereby acknowledges and agrees that, in connection with this Global Warrant Exchange and the issuance of the Global Warrant,
the Holder is deemed to have surrendered the number of Warrants in form of Warrant Certificates in the name of the Holder equal to the
number of Warrants evidenced by the Global Warrant.
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ____________________________________________________
Signature
of Authorized Signatory of Investing Entity: ______________________________
Name
of Authorized Signatory: ________________________________________________
Title
of Authorized Signatory: _________________________________________________
Date:
_______________________________________________________________
Exhibit
5
Warrant
Agent Fee Schedule
Exhibit
5.1
November
2, 2023
SINTX
Technologies, Inc.
1885
West 2100 South
Salt
Lake City, UT 84119
Re: |
Registration
Statement on Form S-1 (File No. 333-275137) |
Ladies
and Gentlemen:
We
have acted as counsel to SINTX Technologies, Inc., a Delaware corporation (the “Company”), in connection with a Registration
Statement on Form S-1 (as amended or supplemented, the “Registration Statement”) filed by the Company with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities
Act”), relating to the registration by the Company of up to 11,103,708 Units consisting of (a)(i) up to 11,103,708 shares (the
“Unit Shares”) of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”),
or (ii) up to 11,103,708 pre-funded warrants (the “Pre-Funded Warrants” and each share of Common Stock underlying
a Pre-Funded Warrant, a “Pre-Funded Warrant Share”) in lieu thereof to purchase up to 11,103,708 shares of Common
Stock, and (b) accompanying Common Stock purchase warrants to purchase up to 11,103,708 shares of Common Stock (the “Class E
Warrants”, and each share of Common Stock underlying a Class E Warrant, a “Class E Warrant Share”). The
Registration Statement also relates to the issuance by the Company of (x) Common Stock purchase warrants issuable to the placement agent
to purchase up to 444,148 shares of Common Stock (the “Placement Agent Warrants” and, together with the Pre-Funded
Warrants and the Class E Warrants, the “Warrants” and each share of Common Stock underlying a Placement Agent Warrant,
a “Placement Agent Warrant Share” and, together with the Pre-Funded Warrant Shares and Class E Warrant Shares, the
“Warrant Shares”), and (y) an aggregate of up to 22,651,564 Warrant Shares issuable upon exercise of the Warrants.
We
have examined such documents and have reviewed such questions of law as we have considered necessary or appropriate for the purposes
of our opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted
to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies.
We have also assumed the legal capacity for all purposes relevant hereto of all natural persons. As to questions of fact material to
our opinions, we have relied upon certificates or comparable documents of officers and other representatives of the Company and of public
officials.
Based
on the foregoing, we are of the opinion that:
1.
The Units, when issued, delivered and paid for as described in the Registration Statement, will be validly issued, fully paid and non-assessable.
2.
The Unit Shares, when issued, delivered and paid for as described in the Registration Statement, will be validly issued, fully paid and
non-assessable.
3.
The Pre-Funded Warrants and Class E Warrants, when duly executed by the Company and duly delivered to the purchasers thereof against
payment therefor as described in the Registration Statement, will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
4.
The Placement Agent Warrants, when duly executed by the Company and duly delivered to the placement agent as described in the Registration
Statement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
5.
The Warrant Shares have been duly authorized and if, as, and when the Warrant Shares are issued and delivered by the Company upon exercise
of the Warrants in accordance with the terms thereof, including, without limitation, the payment in full of applicable consideration,
the Warrant Shares will be validly issued, fully paid and non-assessable.
(a)
Our opinions set forth in paragraphs 3 and 4 above are subject to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance
laws).
(b)
Our opinions set forth in paragraphs 3 and 4 above are subject to the effect of general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or at law.
(c)
Our opinions set forth in paragraphs 3 and 4 above are subject to limitations regarding the availability of indemnification and contribution
where such indemnification or contribution may be limited by applicable law or the application of principles of public policy.
(d)
We express no opinion as to the enforceability of (i) provisions that relate to choice of law, forum selection or submission to jurisdiction
(including, without limitation, any express or implied waiver of any objection to venue in any court or of any objection that a court
is an inconvenient forum) to the extent that the validity, binding effect or enforceability of any such provision is to be determined
by any court other than a state court of the State of New York, (ii) waivers by the Company of any statutory or constitutional rights
or remedies, (iii) terms which excuse any person or entity from liability for, or require the Company to indemnify such person or entity
against, such person’s or entity’s negligence or willful misconduct or (iv) obligations to pay any prepayment premium, default
interest rate, early termination fee or other form of liquidated damages, if the payment of such premium, interest rate, fee or damages
may be construed as unreasonable in relation to actual damages or disproportionate to actual damages suffered as a result of such prepayment,
default or termination.
(e)
We draw your attention to the fact that, under certain circumstances, the enforceability of terms to the effect that provisions may not
be waived or modified except in writing may be limited.
(f)
We have assumed that the per share exercise price of the Pre-Funded Warrants (inclusive of the pre-funded portion of such per share exercise
price) and the Class E Warrants will at least equal the par value of the Common Stock.
Our
opinions expressed above are limited to the laws of the State of New York and the Delaware General Corporation Law.
We
hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and to the reference to our firm under the
heading “Legal Matters” in the prospectus constituting part of the Registration Statement. In giving this consent, we do
not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission thereunder.
|
Very
truly yours, |
|
|
|
/s/
Dorsey & Whitney LLP |
DFM/NST
Exhibit
10.26
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of ______, 2023, between Sintx Technologies, Inc., a
Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including
its successors and assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities
Act (as defined below), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires
to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt
and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE
I.
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms
have the meanings set forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Class
E Warrants” means, collectively, the Class E Common Stock purchase warrants, if any, delivered to the Purchasers at the Closing
in accordance with Section 2.2(a) hereof, which Class E Warrants shall be exercisable immediately after issuance and will expire five
years after the Closing Date, in the form of Exhibit B attached hereto.
“Class
E Warrant Shares” means the shares of Common Stock issuable upon exercise of the Class E Warrants.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the second (2nd)
Trading Day following the date hereof.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.01 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Common
Unit” means each Common Unit consisting of (a) one Share and (b) one Class E Warrant to purchase one Class E Warrant Share.
“Common
Unit Purchase Price” equals $___ per each Common Unit, subject to adjustments for reverse and forward stock splits, stock dividends,
stock combinations and other similar transactions of Common Stock that occur after the date of this agreement.
“Common
Unit Subscription Amount” means, as to each purchaser, the aggregate amount to be paid for the Common Units hereunder as specified
below such Purchaser’s name on the signature page of this Agreement and next to the heading “Common Unit Subscription Amount”,
in immediately available funds.
“Company
Counsel(s)” means Dorsey & Whitney LLP, with offices located at111 South Main Street, Suite 2100, Salt Lake City, Utah,
84111 and Life Science Law PC, with offices located at 4372 W. Mille Lacs Drive, South Jordan, Utah, 84009.
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and
before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the
date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight
(New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date
hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“EGS”
means Ellenoff Grossman & Schole LLP, with offices located at 1345 Avenue of the Americas, New York, New York 10105-0302.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant
to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority
of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities
upon the exercise or exchange of or conversion of any Securities issued hereunder, warrants to the Placement Agent in connection with
the transactions pursuant to this Agreement and any securities upon exercise of warrants to the Placement Agents and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided
that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease
the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations)
or to extend the term of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined
in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith
during the 2 months following the sale of Securities pursuant to this agreement, and provided that any such issuance shall only be to
a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset
in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment
of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital
or to an entity whose primary business is investing in securities and (d) up to $___ of Units issued to other purchasers pursuant to
the Prospectus concurrently with the Closing at the Common Unit Purchase Price, less the aggregate Subscription Amount pursuant to this
Agreement.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“FDA”
shall have the meaning ascribed to such term in Section 3.1(hh).
“FDCA”
shall have the meaning ascribed to such term in Section 3.1(hh).
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual
Property Company Counsel” means Polsinelli PC, with offices located at One E. Washington St., Ste 1200, Phoenix, Arizona, 85004
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreement” means the Lock-Up Agreement, dated as of the date hereof, by and among the Company and the directors, officers,
and 5% stockholders of the Company, in the form of Exhibit A attached hereto.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3.1(hh).
“Placement
Agent” means Maxim Group LLC.
“Pre-Funded
Units” means each Pre-Funded Unit consisting of (a) one Pre-Funded Warrant to purchase one Pre-Funded Warrant Share and (b)
one Class E Warrant to purchase one Class E Warrant Share.
“Pre-Funded
Unit Purchase Price” equals $_____ per each Pre-Funded Unit, subject to adjustment for reverse and forward stock splits, stock
dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
“Pre-Funded
Unit Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for the Pre-Funded Units purchased hereunder
as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Pre-Funded Unit
Subscription Amount,” in immediately available funds.
“Pre-Funded
Warrant” means, collectively, the Pre-Funded Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance
with Section 2.2(a) hereof, which Pre-Funded Warrants shall be exercisable immediately and shall expire when exercised in full, in the
form of Exhibit C attached hereto.
“Pre-Funded
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Preliminary
Prospectus” means any preliminary prospectus included in the Registration Statement, as originally filed or as part of any
amendment thereto, or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Securities
Act.
“Pricing
Prospectus” means (i) the Preliminary Prospectus relating to the Securities that was included in the Registration Statement
immediately prior to 8:00 pm (New York City time) on the date hereof and (ii) any free writing prospectus (as defined in the Securities
Act) identified on Schedule A hereto, taken together.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
means the final prospectus filed for the Registration Statement.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement with Commission file No. 333-275137 which registers the sale of the Units,
Shares, the Warrants and the Warrant Shares to the Purchasers and includes any Rule 462(b) Registration Statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule
462(b) Registration Statement” means any registration statement prepared by the Company registering additional Securities,
which was filed with the Commission on or prior to the date hereof and became automatically effective pursuant to Rule 462(b) promulgated
by the Commission pursuant to the Securities Act.
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Units, Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be
deemed to include locating and/or borrowing shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the Common Unit Subscription Amount and/or Pre-Funded Unit Subscription Amount as applicable,
in accordance with Section 2.1 herein.
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange, the Pink Open Market, OTCQB or the OTCQX (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Lock-Up Agreement, the Warrants, the Warrant Agency Agreement, all exhibits and schedules
thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means American Stock Transfer and Trust Company, the current transfer agent of the Company, with a mailing address of
59 Maiden Lane, New York, New York 10038 and any successor transfer agent of the Company.
“Units”
means, collectively the Common Units and Pre-Funded Units.
“Warrants”
means, collectively, the Class E Warrants and the Pre-Funded Warrants.
“Warrant
Agency Agreement” means the warrant agency agreement dated on or about the Closing Date, between the Company and the Transfer
Agent.
“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
II.
PURCHASE
AND SALE
2.1
Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the
execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly,
agree to purchase, up to an aggregate of $_____ of Common Units determined pursuant to Section 2.2(a); provided, however,
that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates,
and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in
excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Common Units such Purchaser
may elect to purchase Pre-Funded Units at the Pre-Funded Unit Purchase Price in lieu of Common Units. The “Beneficial Ownership
Limitation” shall be 4.99% (or, at the election of the Purchaser at Closing, 9.99%) of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of the Securities on the Closing Date. Unless otherwise directed by the Placement
Agent, each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made
available for “Delivery Versus Payment” settlement with the Company or its designee. The Company shall deliver to each Purchaser
its respective Shares and Class E Warrants and/or Pre-Funded Warrants and Class E Warrants (as applicable to such purchaser) as determined
pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at
the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur remotely by
electronic transfer of the Closing documentation. Each Purchaser acknowledges that, concurrently with the Closing and pursuant to the
Prospectus, the Company may sell up to $______ of additional Units to purchasers not party to this Agreement, less the aggregate Subscription
Agreement to this Agreement, and will issue to such purchasers such shares of Common Stock and Class E Warrants and/or Pre-Funded Warrants
and Class E Warrants in the same form as the same Common Unit Purchase Price or Pre-Funded Unit Purchase Price. Unless otherwise directed
by the Placement Agent, settlement of the Shares shall occur via “Delivery Versus Payment” (“DVP”) (i.e.,
on the Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer
Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent
shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent
(or its clearing firm) by wire transfer to the Company). Notwithstanding anything herein to the contrary, if at any time on or after
the time of execution of this Agreement by the Company and an applicable Purchaser, through, and including the time immediately prior
to the Closing (the “Pre-Settlement Period”), such Purchaser sells to any Person all, or any portion, of the Shares
to be issued hereunder to such Purchaser at the Closing (collectively, the “Pre-Settlement Shares”), such Purchaser
shall, automatically hereunder (without any additional required actions by such Purchaser or the Company), be deemed to be unconditionally
bound to purchase such Pre-Settlement Shares at the Closing; provided, that the Company shall not be required to deliver any Pre-Settlement
Shares to such Purchaser prior to the Company’s receipt of the purchase price of such Pre-Settlement Shares hereunder; and provided
further that the Company hereby acknowledges and agrees that the forgoing shall not constitute a representation or covenant by such Purchaser
as to whether or not during the Pre-Settlement Period such Purchaser shall sell any shares of Common Stock to any Person and that any
such decision to sell any shares of Common Stock by such Purchaser shall solely be made at the time such Purchaser elects to effect any
such sale, if any. Notwithstanding anything to the contrary herein and a Purchaser’s Subscription Amount set forth on the signature
pages attached hereto, the number of Shares purchased by a Purchaser (and its Affiliates) hereunder shall not, when aggregated with all
other shares of Common Stock owned by such Purchaser (and its Affiliates) at such time, result in such Purchaser beneficially owning
(as determined in accordance with Section 13(d) of the Exchange Act) in excess of 9.9% of the then issued and outstanding Common Stock
outstanding at the Closing (the “Beneficial Ownership Maximum”), and such Purchaser’s Subscription Amount, to
the extent it would otherwise exceed the Beneficial Ownership Maximum immediately prior to the Closing, shall be conditioned upon the
issuance of Shares at the Closing to the other Purchasers signatory hereto. To the extent that a Purchaser’s beneficial ownership
of the Shares would otherwise be deemed to exceed the Beneficial Ownership Maximum, such Purchaser’s Subscription Amount shall
automatically be reduced as necessary in order to comply with this paragraph. Notwithstanding the foregoing, with respect to any Notice(s)
of Exercise (as defined in the Pre-Funded Warrants) delivered on or prior to 12:00 p.m. (New York City time) on the Closing Date, which
may be delivered at any time after the time of execution of the this Agreement, the Company agrees to deliver the Pre-Funded Warrant
Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Closing Date and the Closing Date shall be the Warrant Share
Delivery Date (as defined in the Pre-Funded Warrants) for purposes hereunder.
2.2
Deliveries.
(a)
On or prior to the Closing Date (except as indicated below), the Company shall deliver or cause to be delivered to each Purchaser the
following:
(i)
this Agreement duly executed by the Company;
(ii)
a legal opinion of each Company Counsel, substantially in the form and substance reasonably acceptable to the Placement Agent and each
Purchaser;
(iii)
a legal opinion of Intellectual Property Counsel, substantially in the form and substance reasonably acceptable to the Placement Agent
and each Purchaser;
(iv)
subject to the last sentence of Section 2.1, the Company shall have provided each Purchaser with the Company’s wire instructions,
on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer;
(v)
subject to the last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent
to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
Shares equal to such Purchaser’s Subscription Amount divided by the Common Unit Purchase Price, registered in the name of such
Purchaser;
(vi)
A Class E Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 100% of such
Purchaser’s Shares (or Pre-Funded Warrant Shares), with an exercise price equal to $_____, subject to adjustment therein;
(vii)
for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase
up to a number of shares of Common Stock equal to the portion of such Purchaser’s Subscription Amount applicable to Pre-Funded
Warrant divided by the Pre-Funded Unit Purchase Price, with an exercise price equal to $0.0001 subject to adjustment therein;
(viii)
the duly executed Warrant Agency Agreement;
(ix)
on the date hereof, the duly executed Lock-Up Agreements; and
(x)
the Preliminary Prospectus and Prospectus (which may be delivered in accordance with Rule 172 under the Securities Act).
(b)
On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, the following:
(i)
this Agreement duly executed by such Purchaser; and
(ii)
such Purchaser’s Subscription Amount, which shall be made available for “Delivery Versus Payment” settlement with the
Company or its designee.
2.3
Closing Conditions.
(a)
The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality, in all respects)
on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in
which case they shall be accurate in all material respects (or, to the extent representations or warranties are qualified by materiality,
in all respects) as of such date);
(ii)
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been
performed; and
(iii)
the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b)
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse
Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless
as of a specific date therein in which case they shall be accurate in all material respects or, to the extent representations or warranties
are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii)
the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv)
there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v)
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of
such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1
Representations and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall
be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the
corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:
(a)
Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company
owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and
all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and
free of preemptive and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other references
to the Subsidiaries or any of them in the Transaction Documents shall be disregarded.
(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could
not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction
Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in
any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material
Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or qualification.
(c)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of
the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no
further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith
other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been
(or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will
constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable
law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to
which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby
do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or
assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments
(other than as disclosed in the Registration Statement and the Prospectus), acceleration or cancellation (with or without notice, lapse
of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise)
or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary
is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary
is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary
is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result
in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings
required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus, (iii) application(s) to each
applicable Trading Market for the listing of the Shares and Warrant Shares for trading thereon in the time and manner required thereby,
and (iv) such filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).
(f)
Issuance of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance with
the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed
by the Company. The Warrant Shares are duly authorized and, when issued in accordance with the terms of the Warrants, will be validly
issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized
capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement and the Warrants. The Company has prepared
and filed the Registration Statement in conformity with the requirements of the Securities Act, which became effective on [_____], 2023
(the “Effective Date”), including the Prospectus, and such amendments and supplements thereto as may have been required
to the date of this Agreement. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending
the effectiveness of the Registration Statement or suspending or preventing the use of the Preliminary Prospectus or the Prospectus has
been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened
by the Commission. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus with the Commission
pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became effective, at the date of this Agreement
and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects to
the requirements of the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not misleading; and the Pricing Prospectus, the
Prospectus and any amendments or supplements thereto, at the time the Pricing Prospectus, Prospectus or any amendment or supplement thereto,
as applicable was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities
Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading.
(g)
Capitalization. The capitalization of the Company as of the end of the period covered by its most recently filed periodic report
under the Exchange act was set forth in such periodic reports. Except as otherwise set forth in the SEC Reports, the Company has not
issued any securities since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee
stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s
employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of
the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as set forth
in the SEC Reports, and except for options granted under the Company’s stock option plans, there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the
capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is
or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance
and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any
Person (other than the Purchasers). Except as set forth in the SEC Reports, there are no outstanding securities or instruments of the
Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument
upon an issuance of securities by the Company or any Subsidiary. There are no outstanding securities or instruments of the Company or
any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements
by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does
not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the
outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued
in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board
of Directors or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s stockholders.
(h)
SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the
foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Pricing Prospectus
and the Prospectus, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received
a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act,
as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements
of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. The agreements and documents described
in the Registration Statement, the Pricing Prospectus, the Prospectus, and the SEC Reports conform in all material respects to the descriptions
thereof contained therein and there are no agreements or other documents required by the Securities Act and the rules and regulations
thereunder to be described in the Registration Statement, the Pricing Prospectus, the Prospectus or the SEC Reports or to be filed with
the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument
(however characterized or described) to which the Company is a party or by which it is or may be bound or affected and (i) that is referred
to in the Registration Statement, the Pricing Prospectus, the Prospectus or the SEC Reports, or (ii) is material to the Company’s
business, has been duly authorized and validly executed by the Company, is in full force and effect in all material respects and is enforceable
against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such
enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally,
(y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and
(z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses
and to the discretion of the court before which any proceeding therefore may be brought. None of such agreements or instruments has been
assigned by the Company, and neither the Company nor, to the best of the Company’s knowledge, any other party is in default thereunder
and, to the best of the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both,
would constitute a default thereunder. To the best of the Company’s knowledge, performance by the Company of the material provisions
of such agreements or instruments will not result in a violation of any existing Applicable Law or order or decree of any Governmental
Authority or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without
limitation, those relating to environmental laws and regulations.
(i)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, and except as set forth in the SEC Reports, (i) there has been no event, occurrence or development that
has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with
past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed
in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or
made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase
or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate,
except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential
treatment of information. Except for the issuance of the Securities contemplated by this Agreement,no event, liability, fact, circumstance,
occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries
or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed
by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed
at least 1 Trading Day prior to the date that this representation is made.
(j)
Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”). None of the Actions (i) adversely affects or challenges the legality, validity or enforceability
of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected
to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor, to the Company’s knowledge, any director or
officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities
laws or a claim of breach of fiduciary duty. To the knowledge of the Company, there has not been, and there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Securities Act.
(k)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters that would reasonably be expected to have a Material Adverse Effect. The Company and its
Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment
practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that
has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor
has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be
expected to result in a Material Adverse Effect.
(m)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating
to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface
strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or
toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well
as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders,
permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have
received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where in each of clause (i),
(ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(n)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or
modification of any Material Permit.
(o)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them
and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of
which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(p)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which
the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None
of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights
has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date
of this Agreement, except where such action would not reasonably be expected to have a Material Adverse Effect. Neither the Company nor
any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written notice
of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except
as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual
Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The
Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their
intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(q)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage equal to $7.5 million. Neither the Company nor any Subsidiary has any reason
to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business without a significant increase in cost.
(r)
Transactions With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of the Company
or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to
any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to
or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director
or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan of the Company.
(s)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002, as amended that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established
disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and
designed such disclosure controls and procedures to provide reasonable assurance that information required to be disclosed by the Company
in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure
controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report
under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic
report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over
financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected,
or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(t)
Certain Fees. Except for fees payable by the Company to the Placement Agent or as set forth in the Pricing Prospectus or Prospectus,
no brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the
Transaction Documents. The Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf
of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by
the Transaction Documents.
(u)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities,
will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(v)
Registration Rights. Except as set forth on Schedule 3.1(v), no Person has any right to cause the Company or any Subsidiary
to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.
(w)
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and
the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. Except as set forth in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received
notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance
with the listing or maintenance requirements of such Trading Market. Except as set forth in the SEC Reports, the Company is, and has
no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.
The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation
and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in
connection with such electronic transfer.
(x)
Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order
to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the
laws of its state of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company
fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of
the Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.
(y)
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or
counsel with any information that it believes constitutes or might constitute material, non-public information which is not otherwise
disclosed in the Prospectus. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting
transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding
the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules
to this Agreement and the SEC Reports, is true and correct and does not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made,
not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as
a whole with the SEC Reports do not contain any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made and when made,
not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect
to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
(z)
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities
to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading Market
on which any of the securities of the Company are listed or designated.
(aa)
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt
by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds
the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known
contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its
business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements
of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii)
the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when
such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any
facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization
laws of any jurisdiction within one year from the Closing Date. The SEC Reports set forth as of the date thereof all outstanding
secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For
the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess
of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other
contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s
consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due
under leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to
any Indebtedness.
(bb)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, subject
to permitted extensions (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for
the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are
no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company
or of any Subsidiary know of no basis for any such claim. The provisions for taxes payable, if any, shown on the financial statements
filed with or as part of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for
all periods to and including the dates of such consolidated financial statements. The term “taxes” mean all federal,
state, local, foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license,
lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits,
customs, duties or other taxes, fees, assessments, or charges of any kind whatsoever, together with any interest and any penalties, additions
to tax, or additional amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements,
and other documents required to be filed in respect to taxes.
(cc)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any
agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA.
(dd)
Accountants. The Company’s accounting firm is Tanner LLC. To the knowledge and belief of the Company, such accounting firm
(i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to the financial
statements to be included in the Company’s Annual Report for the fiscal year ending December 31, 2023.
(ee)
Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers
is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated
thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or
any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby
is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives.
(ff)
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding
(except for Sections 3.2(f) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has been
asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the
Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified
term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively
impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage
in hedging activities at various times during the period that the Securities are outstanding, including, without limitation, during the
periods that the value of the Warrant Shares deliverable with respect to Securities are being determined, and (z) such hedging activities
(if any) could reduce the value of the existing stockholders’ equity interests in the Company at and after the time that the hedging
activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any
of the Transaction Documents.
(gg)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any
of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agent in connection with the placement
of the Securities.
(hh)
FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under
the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured,
packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical
Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed
by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration,
investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices,
good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure
to be in compliance would not have a Material Adverse Effect. There is no pending, completed or, to the Company’s knowledge, threatened,
action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation)
against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning letter
or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration,
or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and
promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws
or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical
hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company
or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of
its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its Subsidiaries,
and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties, business and operations of
the Company have been and are being conducted in all material respects in accordance with all applicable laws, rules and regulations
of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the United
States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern as to approving
or clearing for marketing any product being developed or proposed to be developed by the Company.
(ii)
Cybersecurity. (i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any
Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its respective
customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively,
“IT Systems and Data”) and (y) the Company and the Subsidiaries have not been notified of, and have no knowledge of
any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and
Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders,
rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use,
access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii)
the Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material
confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company
and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(jj)
Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance
with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value of the
Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under the
Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company
policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the
release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or
prospects.
(kk)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(ll)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s
request.
(mm)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity
of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.
(nn)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
3.2
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and
warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case
they shall be accurate as of such date):
(a)
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents
and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance
by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to
which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof,
will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except:
(i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
(b)
Understandings or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct
or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities (this
representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or
otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the
ordinary course of its business.
(c)
Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each
date on which it exercises any Warrants, it will be an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3),
(a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act.
(d)
Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of
an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.
(e)
Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including
all exhibits and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the
Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition,
results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that
is necessary to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither
the Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect
to the Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes
any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public
information with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance of the
Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to
such Purchaser.
(f)
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has
not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any
purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser
first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material
pricing terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing,
in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion
of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other
than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers,
directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of
all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding
the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions,
with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained
herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order
to effect Short Sales or similar transactions in the future.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1
Warrant Shares. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to
cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant
to any such exercise shall be issued free of all legends. If at any time following the date hereof the Registration Statement (or any
subsequent registration statement registering the sale or resale of the Warrant Shares) is not effective or is not otherwise available
for the sale or resale of the Warrant Shares, the Company shall immediately notify the holders of the Warrants in writing that such registration
statement is not then effective and thereafter shall promptly notify such holders when the registration statement is effective again
and available for the sale or resale of the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability
of the Company to issue, or any Purchaser to sell, any of the Warrant Shares in compliance with applicable federal and state securities
laws). The Company shall use best efforts to keep a registration statement (including the Registration Statement) registering the issuance
or resale of the Warrant Shares effective during the term of the Warrants.
4.2
Furnishing of Information. Until the earliest of the time that (i) no Purchaser owns Securities or (ii) the Warrants have expired,
the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports
required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the
reporting requirements of the Exchange Act.
4.3
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the
rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction
unless shareholder approval is obtained before the closing of such subsequent transaction.
4.4
Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material
terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits
thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company
represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers
by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents, including,
without limitation, the Placement Agent, in connection with the transactions contemplated by the Transaction Documents. In addition,
effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations
under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors,
agents, employees, Affiliates or agents, including, without limitation, the Placement Agent, on the one hand, and any of the Purchasers
or any of their Affiliates on the other hand, shall terminate and be of no further force or effect. The Company understands and confirms
that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. The Company and
each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby,
and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the
prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with
respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is
required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name
of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission
and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers
with prior notice of such disclosure permitted under this clause (b) and reasonably cooperate with such Purchaser regarding such disclosure.
4.5
Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person,
that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by
the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving
Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.6
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting
on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes
constitutes, material non-public information, unless prior thereto such Purchaser shall have consented in writing to the receipt of such
information and agreed in writing with the Company to keep such information confidential. The Company understands and confirms that each
Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company,
any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates delivers any material, non-public
information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall
not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, employees,
Affiliates or agents, including, without limitation, the Placement Agent, or a duty to the Company, any of its Subsidiaries or any of
their respective officers, directors, employees, Affiliates or agents, including, without limitation, the Placement Agent, not to trade
on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent
that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the
Company or any Subsidiaries, the Company shall simultaneously with the delivery of such notice file such notice with the Commission pursuant
to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant
in effecting transactions in securities of the Company.
4.7
Use of Proceeds. Except as set forth in the Pricing Prospectus and Prospectus, the Company shall use the net proceeds from the
sale of the Securities hereunder for general corporate and working capital purposes and shall not use such proceeds: (a) for the satisfaction
of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business
and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding
litigation or (d) in violation of FCPA or OFAC regulations.
4.8
Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser
and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in
settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or
incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company
in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or
any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect
to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such
Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings
such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws
or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct).
If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such
Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with
counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense
of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing,
(ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there
is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position
of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such
separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party
effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent,
but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations,
warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification
required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense,
as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action
or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
4.9
Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep
available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company
to issue Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.10
Listing of Common Stock. The Company hereby agrees to use reasonable best efforts to maintain the listing or quotation of the
Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list
or quote all of the Shares and Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Warrant
Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading
Market, it will then include in such application all of the Shares and Warrant Shares, and will take such other action as is necessary
to cause all of the Shares and Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company
will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply
in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. The
Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another
established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other
established clearing corporation in connection with such electronic transfer.
4.11
Reserved.
4.12
Reserved.
4.13
Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid
to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration
is also offered to all of the parties to the Transaction Documents. For clarification purposes, this provision constitutes a separate
right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat
the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the
purchase, disposition or voting of Securities or otherwise.
4.14
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that
neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including
Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at
such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as
described in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described
in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included
in the Disclosure Schedules (other than as disclosed to its legal and other representatives). Notwithstanding the foregoing and notwithstanding
anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation,
warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the
transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section
4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance
with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced
pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty
not to trade in the securities of the Company to the Company, any of its Subsidiaries, or any of their respective officers, directors,
employees, Affiliates, or agent, including, without limitation, the Placement Agent, after the issuance of the initial press release
as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby
separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge
of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set
forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision
to purchase the Securities covered by this Agreement.
4.15
Capital Changes. Until the one year anniversary of the Closing Date, the Company shall not undertake a reverse or forward stock
split or reclassification of the Common Stock without the prior written consent of the Purchasers holding a majority in interest of the
Shares.
4.16
Exercise Procedures. The form of Notice of Exercise included in the Warrants sets forth the totality of the procedures required
of the Purchasers in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required
of the Purchasers to exercise their Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise shall be required,
nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required in order to
exercise the Warrants. The Company shall honor exercises of the Warrants and shall deliver Warrant Shares in accordance with the terms,
conditions and time periods set forth in the Transaction Documents.
4.17
Lock-Up Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements except
to extend the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If
any party to a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to seek
specific performance of the terms of such Lock-Up Agreement.
ARTICLE
V.
MISCELLANEOUS
5.1
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without
any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the
Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however,
that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including,
without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice
delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Pricing Prospectus and the
Prospectus, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules.
5.4
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in
writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is
delivered via email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New
York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered
via email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if
sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument
signed, in the case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Shares based on
the initial Subscription Amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or, in the case of a waiver, by
the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately
and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers)
shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed
to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement
hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.
Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser
relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected
Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and
the Company.
5.6
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.
5.7
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and
permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom
such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the
transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8
No Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and warranties of
the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
5.9
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto
or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively
in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or
in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of
any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that
it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient
venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction
Documents, then, in addition to the obligations of the Company under Section 4.8, the prevailing party in such Action or Proceeding shall
be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such Action or Proceeding.
5.10
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one
and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery
of a “.pdf” format data file (including any electronic signature covered by the U.S. federal ESIGN Act of 200, Uniform Electronic
Transaction Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com), such signature shall create
a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect
as if such “.pdf” signature page were an original thereof.
5.12
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
5.13
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions
of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may
rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election
in whole or in part without prejudice to its future actions and rights; provided, however, that, in the case of a rescission
of an exercise of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded
exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and
the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant (including, issuance
of a replacement warrant certificate evidencing such restored right).
5.14
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also
pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages,
each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction
Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that
a remedy at law would be adequate.
5.16
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document
or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise
or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by
or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including,
without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not occurred.
5.17
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document
are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance
or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other
Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as
a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way
acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of
this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional
party in any Proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation
of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to
communicate with the Company through EGS. EGS does not represent any of the Purchasers and only represents the Placement Agent. The Company
has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because
it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in
this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the Purchasers.
5.18
Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction
Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts
have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts
are due and payable shall have been canceled.
5.19
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
5.20
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise
the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each
and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the
date of this Agreement.
5.21
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY,
THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
SINTX
TECHNOLOGIES, INC. |
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for Notice: |
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By: |
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Name: |
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E-Mail: |
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With
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO SINTX TECHNOLOGIES, INC. SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories
as of the date first indicated above.
Name
of Purchaser: ________________________________________________________
Signature
of Authorized Signatory of Purchaser: _________________________________
Name
of Authorized Signatory: _______________________________________________
Title
of Authorized Signatory: ________________________________________________
Email
Address of Authorized Signatory: _________________________________________
Address
for Notice to Purchaser:
Address
for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription
Amount: $_________________
Shares:
_________________
Pre-Funded
Warrant Shares: ___________ Beneficial Ownership Blocker ☐ 4.99% or☐ 9.99%
Warrant
Shares: __________________ Beneficial Ownership Blocker ☐ 4.99% or ☐ 9.99%
EIN
Number: ____________________
☐
Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed
to purchase the securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of
the Company to sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded,
(ii) the Closing shall occur on the second (2nd) Trading Day following the date of this Agreement and (iii) any condition
to Closing contemplated by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company
or the above-signed of any agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a
condition and shall instead be an unconditional obligation of the Company or the above-signed (as applicable) to deliver such
agreement, instrument, certificate or the like or purchase price (as applicable) to such other party on the Closing Date.
Exhibit
10.27
PLACEMENT
AGENCY AGREEMENT
_______,
2023
Maxim
Group LLC
300
Park Avenue, 16th Floor
New
York, NY 10022
Ladies
and Gentlemen:
Subject
to the terms and conditions herein (this “Agreement”), Sintx Technologies, Inc., a Delaware corporation (the “Company”),
hereby agrees to sell up to an aggregate of $______ of registered units (the “Units”) of the Company, each Unit consisting
of either (a) one share (the “Shares”) of the Company’s common stock, $0.01 par value per share (the “Common
Stock”) and one Class E Warrant to purchase one share of Common Stock (the “Class E Warrants”) (the “Common
Unit”) or (b) one pre-funded common stock purchase warrant to purchase one share of Common Stock (the “Pre-Funded
Warrants”) and one Class E Warrant (the “Pre-Funded Unit”) (the shares of Common Stock underlying the Pre-Funded
Warrants and the Class E Warrants, the “Warrant Shares”, and the Shares, the Pre-Funded Warrants, the Class E Warrants
and the Warrant Shares, the “Securities”) directly to various investors (each, an “Investor” and,
collectively, the “Investors”) through Maxim Group LLC as placement agent (the “Placement Agent”).
The documents executed and delivered by the Company and the Investors in connection with the Offering (as defined below), including,
without limitation, a securities purchase agreement (the “Purchase Agreement”), shall be collectively referred to
herein as the “Transaction Documents.” The purchase price to the Investors for each Common Unit is $____, the purchase
price to the Investors for each Pre-Funded Unit is $______, the exercise price to the Investor for each share of Common Stock issuable
upon exercise of the Pre-Funded Warrants is $0.0001, and the exercise price to the Investors for each share of Common Stock issuable
upon exercise of the Warrants is $_____. The Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers
on its behalf in connection with the Offering.
The
Company hereby confirms its agreement with the Placement Agent as follows:
Section
1. Agreement to Act as Placement Agent.
(a)
On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions
of this Agreement, the Placement Agent shall be the exclusive placement agent in connection with the offering and sale by the Company
of the Securities pursuant to the Company’s registration statement on Form S-1 (File No. 333-275137) (and including any registration
statement prepared and filed by the Company in accordance with Rule 462(b) pursuant to the Securities Act) (the “Registration
Statement”), with the terms of such offering (the “Offering”) to be subject to market conditions and negotiations
between the Company, the Placement Agent and the prospective Investors. The Placement Agent will act on a reasonable best efforts basis
and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof,
in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (as defined below)
be obligated to underwrite or purchase any of the Securities for its own account or otherwise provide any financing. The Placement Agent
shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to bind the Company with
respect to any prospective offer to purchase Securities and the Company shall have the sole right to accept offers to purchase Securities
and may reject any such offer, in whole or in part. Subject to the terms and conditions hereof, payment of the purchase price for, and
delivery of, the Securities shall be made at one or more closings (each a “Closing” and the date on which each Closing
occurs, a “Closing Date”). The Closing of the issuance of the Securities shall occur via “Delivery Versus Payment”,
i.e., on the Closing Date, the Company shall issue the Securities directly to the account designated by the Placement Agent and, upon
receipt of such Securities, the Placement Agent shall electronically deliver such Securities to the applicable Investor and payment shall
be made by the Placement Agent (or its clearing firm) by wire transfer to the Company. As compensation for services rendered, on each
Closing Date, the Company shall pay to the Placement Agent the fees and expenses set forth below:
(i)
A cash fee equal to 7.0% of the gross proceeds received by the Company from the sale of the Securities at the closing of the Offering
(the “Closing”) (it being understood that if the Company engages Ascendiant Capital Markets LLC (“Ascendiant”)
as a financial advisor in the Offering, the Placement Agent shall receive 85% of such cash fee and Ascendiant shall receive 15% of such
cash fee).
(ii)
Such number of Common Stock purchase warrants (the “Placement Agent Warrants”) to Placement Agent or its designees
at each Closing to purchase shares of Common Stock equal to 4.0% of the aggregate number of Securities sold in the Offering (it being
understood that if the Company engages Ascendiant as a financial advisor in the Offering, the Placement Agent shall receive 85% of such
Placement Agent Warrants and Ascendiant shall receive 15% of such Placement Agent Warrants). The Placement Agent Warrants shall have
the same terms as the warrants issued to the Investors in the Offering except that the exercise price shall be 110% of the public offering
price and shall have an expiration date of 5 years from the effective date (the “Effective Date”) of the Registration
Statement (as further defined below). The Placement Agent Warrants shall not be transferable for six months from the date of the Offering
except as permitted by Financial Industry Regulatory Authority (“FINRA”) Rule 5110(e)(2).
(iii)
The Company also agrees to reimburse Placement Agent’s expenses up to a maximum of $100,000 in the event of a Closing of the Offering,
unless otherwise agreed by the Company and the Placement Agent, payable immediately upon the Closing of the Offering, or up to a maximum
of $30,000 in the event that there is not a Closing of the Offering, payable upon the ending of the Engagement Period.
(iv)
In addition, upon the Closing of the Offering, or if the Engagement Period ends prior to the Closing of the Offering, then if within
twelve (12) months following such time, the Company completes any financing of equity, equity-linked or debt or other capital raising
activity with, or receives any proceeds from, any of the investors contacted or introduced by the Placement Agent during the Engagement
Period, then the Company will pay the Placement Agent upon the closing of such financing or receipt of such proceeds the compensation
equivalent to that set forth in this Section 1(a).
(b)
The term of the Placement Agent’s exclusive engagement will be as set forth in the Engagement Agreement (as defined below). Notwithstanding
anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein
and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement,
and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable
pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(g)(4)(A), will survive any expiration or
termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent or its Affiliates
to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with
Persons (as defined below) other than the Company. As used herein (i) “Persons” means an individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency
or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through
one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed
under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
Section
2. Representations, Warranties and Covenants of the Company. The Company hereby represents, warrants and covenants to the Placement
Agent as of the date hereof, and as of each Closing Date, as follows:
(a)
Securities Law Filings. The Company has filed with the Securities and Exchange Commission (the “Commission”)
the Registration Statement under the Securities Act, which was filed on October 23, 2023, as amended, and declared effective on _______,
2023 for the registration of the Securities under the Securities Act. Following the determination of pricing among the Company and the
prospective Investors introduced to the Company by Placement Agent, the Company will file with the Commission pursuant to Rules 430A
and 424(b) under the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission
promulgated thereunder, a final prospectus relating to the placement of the Securities, their respective pricings and the plan of distribution
thereof and will advise the Placement Agent of all further information (financial and other) with respect to the Company required to
be set forth therein. Such registration statement, at any given time, including the exhibits thereto filed at such time, as amended at
such time, is hereinafter called the “Registration Statement”; such prospectus in the form in which it appears in
the Registration Statement at the time of effectiveness is hereinafter called the “Preliminary Prospectus”; and the
final prospectus, in the form in which it will be filed with the Commission pursuant to Rules 430A and/or 424(b) (including the Preliminary
Prospectus as it may be amended or supplemented) is hereinafter called the “Final Prospectus.” The Registration Statement
at the time it originally became effective is hereinafter called the “Original Registration Statement.” Any reference
in this Agreement to the Registration Statement, the Original Registration Statement, the Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by reference therein (the “Incorporated Documents”),
if any, which were or are filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), at any
given time, as the case may be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement, the Original Registration Statement, the Preliminary Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date
of the Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. All references
in this Agreement to financial statements and schedules and other information which is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration Statement, the
Preliminary Prospectus or the Final Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement,
the Preliminary Prospectus or the Final Prospectus, as the case may be. As used in this paragraph and elsewhere in this Agreement, “Time
of Sale Disclosure Package” means the Preliminary Prospectus, any subscription agreement between the Company and the Investors,
the final terms of the Offering provided to the Investors (orally or in writing) and any issuer free writing prospectus as defined in
Rule 433 of the Act (each, an “Issuer Free Writing Prospectus”), if any, that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Time of Sale Disclosure Package. The term “any Prospectus” shall mean, as
the context requires, the Preliminary Prospectus, the Final Prospectus, and any supplement to either thereof. The Company has not received
any notice that the Commission has issued or intends to issue a stop order suspending the effectiveness of the Registration Statement
or the use of the Preliminary Prospectus or any prospectus supplement or intends to commence a proceeding for any such purpose.
(b)
Assurances. The Original Registration Statement, as amended, (and any further documents to be filed with the Commission) contains
all exhibits and schedules as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto,
at the time it became effective, complied in all material respects with the Securities Act and the applicable Rules and Regulations and
did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Final Prospectus, as of its date, compiled or will comply in all material respects with
the Securities Act and the applicable Rules and Regulations. The Final Prospectus, as amended or supplemented, did not and will not contain
as of the date thereof any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading. The Incorporated Documents, when they were filed with
the Commission, conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations promulgated
thereunder, and none of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein (with respect to Incorporated Documents incorporated by reference
in the Final Prospectus), in light of the circumstances under which they were made not misleading. No post-effective amendment to the
Registration Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate,
a fundamental change in the information set forth therein is required to be filed with the Commission. Except for this Agreement and
the Transaction Documents, there are no documents required to be filed with the Commission in connection with the transaction contemplated
hereby that (x) have not been filed as required pursuant to the Securities Act or (y) will not be filed within the requisite time period.
Except for this Agreement and the Transaction Documents, there are no contracts or other documents required to be described in the Final
Prospectus, or to be filed as exhibits or schedules to the Registration Statement, which have not been described or filed as required.
(c)
Offering Materials. Neither the Company nor any of its directors and officers has distributed and none of them will distribute,
prior to each Closing Date, any offering material in connection with the offering and sale of the Securities other than the Time of Sale
Disclosure Package.
(d)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and the Time of Sale Disclosure Package and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of each of this Agreement by the Company and the consummation by it of the transactions contemplated hereby
and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company,
the Company’s Board of Directors (the “Board of Directors”) or the Company’s shareholders in connection
therewith other than in connection with the Required Approvals (as defined in the Purchase Agreement). This Agreement has been duly executed
by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally,
(ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.
(e)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the transactions contemplated pursuant
to the Time of Sale Disclosure Package, the issuance and sale of the Securities and the consummation by it of the transactions contemplated
hereby and thereby to which it is a party do not and will not (i) conflict with or violate any provision of the Company’s or any
Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with,
or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation
of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations),
or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(f)
Certificates. Any certificate signed by an officer of the Company and delivered to the Placement Agent or to counsel for the Placement
Agent shall be deemed to be a representation and warranty by the Company to the Placement Agent as to the matters set forth therein.
(g)
Reliance. The Company acknowledges that the Placement Agent will rely upon the accuracy and truthfulness of the foregoing representations
and warranties and hereby consents to such reliance.
(h)
Forward-Looking Statements. No forward-looking statements (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) contained in the Time of Sale Disclosure Package has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(i)
Statistical or Market-Related Data. Any statistical, industry-related and market-related data included or incorporated by reference
in the Time of Sale Disclosure Package, are based on or derived from sources that the Company reasonably and in good faith believes to
be reliable and accurate, and such data agree with the sources from which they are derived.
(j)
Certain Fees; FINRA Affiliations. Except as set forth in the Registration Statement and Prospectus, no brokerage or finder’s
fees or commissions are or will be payable by the Company, any Subsidiary or Affiliate of the Company to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the
Transaction Documents. Except as set forth in the Registration Statement and Prospectus, there are no other arrangements, agreements
or understandings of the Company or, to the Company’s knowledge, any of its shareholders that may affect the Placement Agent’s
compensation, as determined by FINRA. Other than payments to the Placement Agent for this Offering or as set forth in the Registration
Statement and Prospectus, the Company has not made and has no agreements, arrangements or understanding to make any direct or indirect
payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise, in consideration
of such person raising capital for the Company or introducing to the Company persons who raised or provided capital to the Company; (ii)
any FINRA member participating in the offering as defined in FINRA Rule 5110 (a “Participating Member”); or (iii) any person
or entity that has any direct or indirect affiliation or association with any Participating Member, within the 180-day period preceding
the initial filing of the Registration Statement through the 60-day period after the Effective Date. None of the net proceeds of the
Offering will be paid by the Company to any Participating Member or its affiliates, except as specifically authorized herein. To the
Company’s knowledge, no officer, director or any beneficial owner of 10% or more of the Company’s Common Stock or Common
Stock Equivalents has any direct or indirect affiliation or association with any Participating Member in the Offering. Except for securities
purchased on the open market, no Company Affiliate is an owner of stock or other securities of any Participating Member. No Company Affiliate
has made a subordinated loan to any Participating Member. No proceeds from the sale of the Securities (excluding placement agent compensation
as disclosed in the Registration Statement and the Prospectus) will be paid to any Participating Member, any persons associated with
a Participating Member or an affiliate of a Participating Member. Except as disclosed in the Prospectus, the Company has not issued any
warrants or other securities or granted any options, directly or indirectly, to the Placement Agent within the 180-day period prior to
the initial filing date of the Prospectus. Except for securities issued to the Placement Agent as disclosed in the Prospectus, no person
to whom securities of the Company have been privately issued within the 180-day period prior to the initial filing date of the Prospectus
is a Participating Member, is a person associated with a Participating Member or is an affiliate of a Participating Member. To the Company’s
knowledge, no Participating Member in the Offering has a conflict of interest with the Company. For this purpose, a “conflict of
interest” exists when a Participating Member, the parent or affiliate of a Participating Member or any person associated with a
Participating Member in the aggregate beneficially own 10% or more of the Company’s outstanding subordinated debt or common equity,
or 10% or more of the Company’s preferred equity. “FINRA member participating in the Offering” includes any associated
person of a Participating Member in the Offering, any member of such associated person’s immediate family and any affiliate of
a Participating Member in the Offering. When used in this Section 3.1(j) the term “affiliate of a FINRA member” or “affiliated
with a FINRA member” means an entity that controls, is controlled by or is under common control with a FINRA member. The Company
will advise the Representative and EGS if it learns that any officer, director or owner of 10% or more of the Company’s outstanding
Common Stock or Common Stock Equivalents is or becomes an affiliate or associated person of a Participating Member.
(k)
Board of Directors. The Board of Directors is comprised of the persons set forth in the Company’s annual report on form
10-K filed March 29, 2023 under Item 10 captioned “Directors, Executive Officers and Corporate Governance.” The qualifications
of the persons serving as board members and the overall composition of the Board of Directors comply with the Sarbanes-Oxley Act of 2002
and the rules promulgated thereunder applicable to the Company and the rules of the Trading Market. In addition, at least a majority
of the persons serving on the Board of Directors qualify as “independent” as defined under the rules of the Trading Market.
(l)
D&O Questionnaires. To the Company’s knowledge, all information contained in the questionnaires most recently completed
by each of the Company’s directors and officers is true and correct in all respects and the Company has not become aware of any
information which would cause the information disclosed in such questionnaires become inaccurate and incorrect.
(m)
Representations and Warranties Incorporated by Reference. Each of the representations and warranties (together with any related
disclosure schedules thereto) made to the Investors in the Purchase Agreement is hereby incorporated herein by reference (as though fully
restated herein) and is hereby made to, and in favor of, the Placement Agent.
Section
3. Delivery and Payment. Each Closing shall occur at the offices of Ellenoff Grossman & Schole LLP, 1345 Avenue of the Americas,
New York, New York 10105 (“Placement Agent Counsel”) (or at such other place as shall be agreed upon by the Placement
Agent and the Company). Subject to the terms and conditions hereof, at each Closing payment of the purchase price for the Securities
sold on such Closing Date shall be made by Federal Funds wire transfer, against delivery of such Securities, and such Securities shall
be registered in such name or names and shall be in such denominations, as the Placement Agent may request at least one business day
before the time of purchase (as defined below).
Deliveries
of the documents with respect to the purchase of the Securities, if any, shall be made at the offices of Placement Agent Counsel. All
actions taken at a Closing shall be deemed to have occurred simultaneously.
Section
4. Covenants and Agreements of the Company. The Company further covenants and agrees with the Placement Agent as follows:
(a)
Registration Statement Matters. The Company will advise the Placement Agent promptly after it receives notice thereof of the time
when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Final Prospectus has been
filed and will furnish the Placement Agent with copies thereof. The Company will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange
Act subsequent to the date of any Prospectus and for so long as the delivery of a prospectus is required in connection with the Offering.
The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend
the Registration Statement or to amend or supplement any Prospectus or for additional information, (ii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed
at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Preliminary
Prospectus or the Final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment
to the Registration Statement, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of
the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or a Prospectus or for additional information, (iii) of the issuance by any state securities
commission of any proceedings for the suspension of the qualification of the Securities for offering or sale in any jurisdiction or of
the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery to the Commission for filing
of any amendment or supplement to the Registration Statement or Prospectus; (v) of the receipt of any comments or request for any additional
information from the Commission; and (vi) of the happening of any event during the period described in this Section 4(a) that, in the
judgment of the Company, makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that requires
the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company shall use its best efforts to prevent the issuance of any such stop order or
prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension
at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file
a new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable.
Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under
the Securities Act, including with respect to the timely filing of documents thereunder, and will use its reasonable efforts to confirm
that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
(b)
Blue Sky Compliance. The Company will cooperate with the Placement Agent and the Investors in endeavoring to qualify the Securities
for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Investors may reasonably
request and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose,
provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in
any jurisdiction where it is not now so qualified or required to file such a consent, and provided further that the Company shall not
be required to produce any new disclosure document. The Company will, from time to time, prepare and file such statements, reports and
other documents as are or may be required to continue such qualifications in effect for so long a period as the Placement Agent may reasonably
request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification
or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation
or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration
or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(c)
Amendments and Supplements to a Prospectus and Other Matters. The Company will comply with the Securities Act and the Exchange
Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required
by law to be delivered in connection with the distribution of Securities contemplated by the Incorporated Documents or any Prospectus
(the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or
in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated
Documents or any Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, as
the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus
or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the
Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement
or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements
in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances under which they were
made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so
amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents
or any Prospectus in connection with the Offering, the Company will furnish the Placement Agent with a copy of such proposed amendment
or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
(d)
Copies of any Amendments and Supplements to a Prospectus. The Company will furnish the Placement Agent, without charge, during
the period beginning on the date hereof and ending on the later of the last Closing Date of the Offering, as many copies of any Prospectus
or prospectus supplement and any amendments and supplements thereto, as the Placement Agent may reasonably request.
(e)
Free Writing Prospectus. The Company covenants that it will not, unless it obtains the prior written consent of the Placement
Agent, make any offer relating to the Securities that would constitute a Company Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with
the Commission or retained by the Company under Rule 433 of the Securities Act. In the event that the Placement Agent expressly consents
in writing to any such free writing prospectus (a “Permitted Free Writing Prospectus”), the Company covenants that
it shall (i) treat each Permitted Free Writing Prospectus as an Company Free Writing Prospectus, and (ii) comply with the requirements
of Rule 164 and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
(f)
Transfer Agent. The Company will maintain, at its expense, a registrar and transfer agent for the shares of Common Stock.
(g)
Earnings Statement. As soon as practicable and in accordance with applicable requirements under the Securities Act, but in any
event not later than 18 months after the last Closing Date, the Company will make generally available to its security holders and to
the Placement Agent an earnings statement, covering a period of at least 12 consecutive months beginning after the last Closing Date,
that satisfies the provisions of Section 11(a) and Rule 158 under the Securities Act.
(h)
Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the
Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in
the manner required by the Exchange Act.
(i)
Additional Documents. The Company will enter into any subscription, purchase or other customary agreements as the Placement
Agent or the Investors deem necessary or appropriate to consummate the Offering, all of which will be in form and substance reasonably
acceptable to the Placement Agent and the Investors. The Company agrees that the Placement Agent may rely upon, and each is a third party
beneficiary of, the representations and warranties, and applicable covenants, set forth in any such purchase, subscription or other agreement
with Investors in the Offering.
(j)
No Manipulation of Price. Neither the Company, nor to its knowledge, any of its employees, directors or shareholders, has
taken or will take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause
or result in, under the Exchange Act, or otherwise stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(k)
Acknowledgment. The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit
and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement
Agent’s prior written consent.
(l)
Announcement of Offering. The Company acknowledges and agrees that the Placement Agent may, subsequent to the Closing, make public
its involvement with the Offering.
(m)
Reliance on Others. The Company confirms that it will rely on its own counsel and accountants for legal and accounting advice.
(n)
Research Matters. By entering into this Agreement, the Placement Agent does not
provide any promise, either explicitly or implicitly, of favorable or continued research coverage of the Company and the Company hereby
acknowledges and agrees that the Placement Agent’s selection as a placement agent for the Offering was in no way conditioned, explicitly
or implicitly, on the Placement Agent providing favorable or any research coverage of the Company. In accordance with FINRA Rule 2241(b)(2),
the parties acknowledge and agree that the Placement Agent has not directly or indirectly offered favorable research, a specific rating
or a specific price target, or threatened to change research, a rating or a price target, to the Company or inducement for the receipt
of business or compensation. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company
may have against the Placement Agent with respect to any conflict of interest that may arise from the fact that the views expressed by
their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated
to the Company by the Placement Agent’s investment banking divisions. The Company acknowledges that the Placement Agent is a full
service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account
or the account of its customers and hold long or short position in debt or equity securities of the Company.
(o)
Subsequent Equity Sales.
(i)
From the date hereof until six months after the Closing Date (as defined in the Warrants), neither the Company nor any Subsidiary shall
(i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any Common Stock or Common Stock Equivalents
or (ii) file any registration statement or amendment or supplement thereto, other than the Prospectus or filing a registration statement
on Form S-8 in connection with any employee benefit plan, in each case without prior written consent of the Placement Agent.
(ii)
From the date hereof until six months after the Closing Date (as defined in the Warrants), the Company shall be prohibited from effecting
or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents
(or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction
in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or
include the right to receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other
price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the
initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset
at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events
directly or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction
under, any agreement, including, but not limited to, an equity line of credit or an “at-the-market offering”, whereby the
Company may issue securities at a future determined price, provided, however, that, after ninety (90) days following the Effective Date,
the issuance of shares of Common Stock in an “at the market” offering with the Placement Agent as sales agent shall not be
deemed a Variable Rate Transaction. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such
issuance, which remedy shall be in addition to any right to collect damages.
(iii)
Notwithstanding the foregoing, this Section 4(o) shall not apply (i) in respect of an Exempt Issuance, except that no Variable Rate Transaction
shall be an Exempt Issuance, or (ii) in respect to the reset of the conversion price included in the Series B Convertible Preferred stock
or the exercise price included in the Class A Warrants and Class B Warrants issued by the Company in 2022. An “Exempt Issuance”
means the issuance of (a) Common Stock or equity awards to employees, officers or directors of the Company pursuant to any stock or option
plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members
of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities upon the exercise
or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible
into Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the
date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price
of such securities (other than in connection with automatic price resets, stock splits, adjustments or combinations as set forth in such
securities) or to extend the term of such securities and (c) securities issued pursuant to acquisitions or strategic transactions approved
by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities”
(as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection
therewith during the six month period following the Closing Date, and provided that any such issuance shall only be to a Person (or to
the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business
synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds,
but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an
entity whose primary business is investing in securities.
(iv)
If within twelve (12) months of the Closing, the Company completes any financing of equity, equity-linked, convertible or debt or other
capital-raising activity of the Company for which the Placement Agent is not acting as underwriter or placement agent (other than the
exercise by any person or entity of any options, warrants or other convertible securities) with any of the investors that were contacted
or introduced by the Placement Agent in the Offering, then the Company shall pay to the Placement Agent a commission as described in
Section 1(a)(i) herein, in each case only with respect to the portion of such financing received from such investors.
(p)
Lock-Up Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements except
to extend the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If
any party to a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to seek
specific performance of the terms of such Lock-Up Agreement.
(q)
FINRA. The Company shall advise the Placement Agent (who shall make an appropriate filing with FINRA) if it is aware that any
officer, director, 10% or greater shareholder of the Company or Person that received the Company’s unregistered equity securities
in the past 180 days is or becomes an affiliate or associated person of a FINRA member firm prior to the earlier of the termination of
this Agreement or the 60-day period after the Effective Date
Section
5. Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder shall be subject to the
accuracy of the representations and warranties on the part of the Company set forth in Section 2 hereof, in each case as of the date
hereof and as of each Closing Date as though then made, to the timely performance by each of the Company of its covenants and other obligations
hereunder on and as of such dates, and to each of the following additional conditions:
(a)
Accountants’ Comfort Letter. On the date hereof, the Placement Agent shall have received, and the Company shall have caused
to be delivered to the Placement Agent, a letter from Tanner LLC (the independent registered public accounting firm of the Company),
addressed to the Placement Agent, dated as of the date hereof, in form and substance satisfactory to the Placement Agent. The letter
shall not disclose any change in the condition (financial or other), earnings, operations, business or prospects of the Company from
that set forth in the Incorporated Documents or the applicable Prospectus or prospectus supplement, which, in the Placement Agent’s sole
judgment, is material and adverse and that makes it, in the Placement Agent’s sole judgment, impracticable or inadvisable to proceed
with the Offering of the Securities as contemplated by such Prospectus.
(b)
Compliance with Registration Requirements; No Stop Order; No Objection from the FINRA. Each Prospectus (in accordance with Rule
424(b)) and “free writing prospectus” (as defined in Rule 405 of the Securities Act), if any, shall have been duly
filed with the Commission, as appropriate; no stop order suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no order preventing
or suspending the use of any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened
by the Commission; no order having the effect of ceasing or suspending the distribution of the Securities or any other securities of
the Company shall have been issued by any securities commission, securities regulatory authority or stock exchange and no proceedings
for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company, contemplated by any securities commission,
securities regulatory authority or stock exchange; all requests for additional information on the part of the Commission shall have been
complied with; and the FINRA shall have raised no objection to the fairness and reasonableness of the placement terms and arrangements.
(c)
Corporate Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement
and each Prospectus, and the registration, sale and delivery of the Securities, shall have been completed or resolved in a manner reasonably
satisfactory to the Placement Agent’s counsel, and such counsel shall have been furnished with such papers and information as it may
reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 5.
(d)
No Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to each Closing Date, in the
Placement Agent’s sole judgment after consultation with the Company, there shall not have occurred any Material Adverse Effect or any
material adverse change or development involving a prospective material adverse change in the condition or the business activities, financial
or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus
(“Material Adverse Change”).
(e)
Opinion of Counsels for the Company. The Placement Agent shall have received on each Closing Date (i) the favorable opinion of
Dorsey & Whitney LLP, counsel to the Company, dated as of such Closing Date, including, without limitation, a negative assurance
letter addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent, (ii) the favorable opinion of
Life Science Law PC, counsel to the Company, dated as of such Closing Date, including, without limitation, a negative assurance letter
addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent and (iii) the favorable opinion of Polsinelli
PC, intellectual property legal counsel to the Company, addressed to the Placement Agent in form and substance satisfactory to the Placement
Agent.
(f)
Officers’ Certificate. The Placement Agent shall have received on each Closing Date a certificate of the Company, dated
as of such Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, to the effect that, and the
Placement Agent shall be satisfied that, the signers of such certificate have reviewed the Registration Statement, the Incorporated Documents,
the Prospectus, and this Agreement and to the further effect that:
(i)
The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of such Closing Date,
and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or
prior to such Closing Date;
(ii)
No stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus has been issued and no proceedings
for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened under the Securities Act; no order
having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company has been issued
by any securities commission, securities regulatory authority or stock exchange in the United States and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory
authority or stock exchange in the United States;
(iii)
When the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of such
certificate, the Registration Statement and the Incorporated Documents, if any, when such documents became effective or were filed with
the Commission, and any Prospectus, contained all material information required to be included therein by the Securities Act and the
Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects
conformed to the requirements of the Securities Act and the Exchange Act and the applicable rules and regulations of the Commission thereunder,
as the case may be, and the Registration Statement and the Incorporated Documents, if any, and any Prospectus, did not and do not include
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading (provided, however, that the preceding representations
and warranties contained in this paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Placement Agent expressly for use therein) and, since the effective date
of the Registration Statement, there has occurred no event required by the Securities Act and the rules and regulations of the Commission
thereunder to be set forth in the Incorporated Documents which has not been so set forth; and
(iv)
Subsequent to the respective dates as of which information is given in the Registration Statement, the Incorporated Documents and any
Prospectus, there has not been: (a) any Material Adverse Change; (b) any transaction that is material to the Company and the Subsidiaries
taken as a whole, except transactions entered into in the ordinary course of business; (c) any obligation, direct or contingent, that
is material to the Company and the Subsidiaries taken as a whole, incurred by the Company or any Subsidiary, except obligations incurred
in the ordinary course of business; (d) any material change in the capital stock (except changes thereto resulting from the exercise
of outstanding stock options or warrants or conversion of outstanding preferred stock) or outstanding indebtedness of the Company or
any Subsidiary; (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company; or (f) any loss
or damage (whether or not insured) to the property of the Company or any Subsidiary which has been sustained or will have been sustained
which has a Material Adverse Effect.
(g)
Regulatory Certificate. On the Closing Date, the Placement Agent shall have received a certificate from the Company’s Chief
Executive Officer with respect to certain regulatory matters, dated as of the Closing Date, addressed to the Placement Agent in form
and substance satisfactory to the Placement Agent.
(h)
Bring-down Comfort Letter. On each Closing Date, the Placement Agent shall have received from Tanner LLC, or such other
independent registered public accounting firm of the Company, a letter dated as of such Closing Date, in form and substance satisfactory
to the Placement Agent, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (a) of this
Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than two business days
prior to such Closing Date.
(i)
Stock Exchange Listing. The Common Stock shall be registered under the Exchange Act and shall be listed on the Trading Market,
and the Company shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration
of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market, nor shall
the Company have received any information suggesting that the Commission or the Trading Market is contemplating terminating such registration
or listing.
(j)
Lock-Up Agreements. On the Closing Date, the Placement Agent shall have received the executed lock-up agreement from each of the
Company’s directors, officers and 5% stockholders of the Company.
(k)
Warrant Agency Agreement. On the Closing Date the duly executed warrant agency agreement executed by and between the Company and
the transfer agent.
(l)
Additional Documents. On or before each Closing Date, the Placement Agent and counsel for the Placement Agent shall have received
such information and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of
the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction
of any of the conditions or agreements, herein contained.
If
any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by
the Placement Agent by notice to the Company at any time on or prior to a Closing Date, which termination shall be without liability
on the part of any party to any other party, except that Section 6 (Payment of Expenses), Section 7 (Indemnification and Contribution)
and Section 8 (Representations and Indemnities to Survive Delivery) shall at all times be effective and shall survive such termination.
Section
6. Payment of Expenses. The Company agrees to pay all costs, fees and expenses incurred by the Company in connection with the performance
of its obligations hereunder and in connection with the transactions contemplated hereby, including, without limitation: (i) all expenses
incident to the issuance, delivery and qualification of the Securities (including all printing and engraving costs); (ii) all fees and
expenses of the registrar and transfer agent of the Common Stock; (iii) all necessary issue, transfer and other stamp taxes in connection
with the issuance and sale of the Securities; (iv) all fees and expenses of the Company’s counsel, independent public or certified
public accountants and other advisors; (v) all costs and expenses incurred in connection with the preparation, printing, filing, shipping
and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts),
the Preliminary Prospectus, the Final Prospectus and each prospectus supplement, if any, and all amendments and supplements thereto,
and this Agreement; (vi) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company or the Placement Agent
in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the
Securities for offer and sale under the state securities or blue sky laws or the securities laws of any other country, and, if requested
by the Placement Agent, preparing and printing a “Blue Sky Survey,” an “International Blue Sky Survey”
or other memorandum, and any supplements thereto, advising the Placement Agent of such qualifications, registrations and exemptions;
(vii) if applicable, the filing fees incident to the review and approval by the FINRA of the Placement Agent’s participation in the offering
and distribution of the Securities; (viii) the fees and expenses associated with including the Shares and Warrant Shares on the Trading
Market; (ix) all costs and expenses incident to the travel and accommodation of the Company’s and the Placement Agent’s employees
on the “roadshow,” if any; and (x) all other fees, costs and expenses referred to in Part II of the Registration Statement.
Section
7. Indemnification and Contribution.
(a)
The Company agrees to indemnify and hold harmless the Placement Agent, its affiliates and each person controlling the Placement Agent
(within the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the Placement Agent, its
affiliates and each such controlling person (the Placement Agent, and each such entity or person. an “Indemnified Person”)
from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”),
and shall reimburse each Indemnified Person for all fees and expenses (including the reasonable fees and expenses of one counsel for
all Indemnified Persons, except as otherwise expressly provided herein) (collectively, the “Expenses”) as they are
incurred by an Indemnified Person in investigating, preparing, pursuing or defending any Actions, whether or not any Indemnified Person
is a party thereto, (i) caused by, or arising out of or in connection with, any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Incorporated Document, or any Prospectus or by any omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading (other than untrue statements or alleged untrue statements in, or omissions or alleged omissions from, information relating
to an Indemnified Person furnished in writing by or on behalf of such Indemnified Person expressly for use in the Incorporated Documents)
or (ii) otherwise arising out of or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant
to this Agreement, the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such
advice, services or transactions; provided, however, that, in the case of clause (ii) only, the Company shall not be responsible
for any Liabilities or Expenses of any Indemnified Person that are finally judicially determined to have resulted solely from such Indemnified
Person’s (x) gross negligence or willful misconduct in connection with any of the advice, actions, inactions or services referred to
above or (y) use of any offering materials or information concerning the Company in connection with the offer or sale of the Securities
in the Offering which were not authorized for such use by the Company and which use constitutes gross negligence or willful misconduct.
The Company also agrees to reimburse each Indemnified Person for all Expenses as they are incurred in connection with enforcing such
Indemnified Person’s rights under this Agreement.
(b)
Upon receipt by an Indemnified Person of actual notice of an Action against such Indemnified Person with respect to which indemnity may
be sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure by any Indemnified
Person so to notify the Company shall not relieve the Company from any liability which the Company may have on account of this indemnity
or otherwise to such Indemnified Person, except to the extent the Company shall have been prejudiced by such failure. The Company shall,
if requested by the Placement Agent, assume the defense of any such Action including the employment of counsel reasonably satisfactory
to the Placement Agent, which counsel may also be counsel to the Company. Any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless: (i) the Company has failed promptly to assume the defense and employ counsel or (ii) the named parties
to any such action (including any impeded parties) include such Indemnified Person and the Company, and such Indemnified Person shall
have been advised in the reasonable opinion of counsel that there is an actual conflict of interest that prevents the counsel selected
by the Company from representing both the Company (or another client of such counsel) and any Indemnified Person; provided that the Company
shall not in such event be responsible hereunder for the fees and expenses of more than one firm of separate counsel for all Indemnified
Persons in connection with any action or related actions, in addition to any local counsel. The Company shall not be liable for any settlement
of any action effected without its written consent (which shall not be unreasonably withheld). In addition, the Company shall not, without
the prior written consent of the Placement Agent (which shall not be unreasonably withheld), settle, compromise or consent to the entry
of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which indemnification or contribution
may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Person from all Liabilities arising out of such action for which indemnification
or contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable.
(c)
In the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the Company
shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate to reflect
(i) the relative benefits to the Company, on the one hand, and to the Placement Agent and any other Indemnified Person, on the other
hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding clause is not permitted
by applicable law, not only such relative benefits but also the relative fault of the Company, on the one hand, and the Placement Agent
and any other Indemnified Person, on the other hand, in connection with the matters as to which such Liabilities or Expenses relate,
as well as any other relevant equitable considerations; provided that in no event shall the Company contribute less than the amount necessary
to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses in excess of the amount of
fees actually received by the Placement Agent pursuant to this Agreement. For purposes of this paragraph, the relative benefits to the
Company, on the one hand, and to the Placement Agent on the other hand, of the matters contemplated by this Agreement shall be deemed
to be in the same proportion as (a) the total value paid or contemplated to be paid to or received or contemplated to be received by
the Company in the transaction or transactions that are within the scope of this Agreement, whether or not any such transaction is consummated,
bears to (b) the fees paid to the Placement Agent under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the Securities Act, as amended, shall be entitled to contribution from a party who was not guilty
of fraudulent misrepresentation.
(d)
The Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement,
the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services or
transactions except for Liabilities (and related Expenses) of the Company that are finally judicially determined to have resulted solely
from such Indemnified Person’s gross negligence or willful misconduct in connection with any such advice, actions, inactions or services.
(e)
The reimbursement, indemnity and contribution obligations of the Company set forth herein shall apply to any modification of this Agreement
and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person’s services under
or in connection with, this Agreement.
Section
8. Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other
statements of the Company or any person controlling the Company, of its officers, and of the Placement Agent set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Placement Agent,
the Company, or any of its or their partners, officers or directors or any controlling person, as the case may be, and will survive delivery
of and payment for the Securities sold hereunder and any termination of this Agreement. A successor to a Placement Agent, or to the Company,
its directors or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Agreement.
Section
9. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered, e-mailed or telecopied and confirmed
to the parties hereto as follows:
If
to the Placement Agent to the address set forth above, attention: James Siegal, email: jsiegel@maximgrp.com
With
a copy to:
Ellenoff
Grossman & Schole LLP
1345
Avenue of the Americas, 11th Floor
New
York, New York 10105
E-mail:
mbernstein@egsllp.com
Attention:
Matthew Bernstein
If
to the Company:
SINTX
Technologies, Inc.
1885
West 2100 South
Salt
Lake City, UT 84119
Facsimile:
(855) 839-3500
Attention:
Chief Executive Officer
With
a copy to:
Dorsey
& Whitney LLP
111
S. Main St., Suite 2100
Salt
Lake City, UT 84111
Attention:
David F. Marx
Any
party hereto may change the address for receipt of communications by giving written notice to the others.
Section
10. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees,
officers and directors and controlling persons referred to in Section 7 hereof, and to their respective successors, and personal representative,
and no other person will have any right or obligation hereunder.
Section
11. Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not
affect the validity or enforceability of any other section, paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.
Section
12. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York applicable
to agreements made and to be performed entirely in such State, without regard to the conflicts of laws principles thereof. This Agreement
may not be assigned by either party without the prior written consent of the other party. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, and their respective successors and permitted assigns. Any right to trial by jury with respect
to any dispute arising under this Agreement or any transaction or conduct in connection herewith is waived. Any dispute arising under
this Agreement may be brought into the courts of the State of New York or into the Federal Court located in New York, New York and, by
execution and delivery of this Agreement, the Company hereby accepts for itself and in respect of its property, generally and unconditionally,
the jurisdiction of aforesaid courts. Each party hereto hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by delivering a copy thereof via overnight delivery (with evidence of delivery) to
such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. The Company agrees that a final judgment in any such action, proceeding or counterclaim brought in any such
court shall be conclusive and binding upon the Company and may be enforced in any other courts to the jurisdiction of which the Company
is or may be subject, by suit upon such judgment. If either party to this Agreement shall commence an action or proceeding to enforce
any provisions of a Transaction Document, then the prevailing party in such action or proceeding shall be reimbursed by the other party
for its attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
Section
13. General Provisions.
(a)
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof. Notwithstanding anything herein to the contrary,
the Engagement Agreement, dated October 23, 2023 (“Engagement Agreement”), between the Company and the Placement Agent
shall continue to be effective and the terms therein shall continue to survive and be enforceable by the Placement Agent in accordance
with its terms, provided that, in the event of a conflict between the terms of the Engagement Agreement and this Agreement, the terms
of this Agreement shall prevail. This Agreement may be executed in two or more counterparts, each one of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by
each party whom the condition is meant to benefit. Section headings herein are for the convenience of the parties only and shall not
affect the construction or interpretation of this Agreement.
(b)
The Company acknowledges that in connection with the offering of the Securities: (i) the Placement Agent’s responsibility to the
Company is solely contractual and commercial in nature, (ii) the Placement Agent has acted at arms length, are not agents of, and owe
no fiduciary duties to the Company or any other person, (iii) the Placement Agent owes the Company only those duties and obligations
set forth in this Agreement and (iv) the Placement Agent may have interests that differ from those of the Company. The Company waives
to the fullest extent permitted by applicable law any claims it may have against the Placement Agent arising from a breach or alleged
breach of fiduciary duty in connection with the offering of the Securities
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If
the foregoing is in accordance with your understanding of our agreement, please sign below whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
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Very
truly yours, |
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SINTX
TECHNOLOGIES, INC. |
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a
Delaware corporation |
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By: |
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Name: |
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Title: |
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The
foregoing Placement Agency Agreement is hereby confirmed and accepted as of the date first above written.
MAXIM
GROUP LLC |
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By:
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Name: |
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Title: |
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